Posted on: Jan 28,2020
We are leaving the European Union in 3 days with very little clarity on what happens to employment rights after Brexit. Will EU workplace rights be retained and will judgments from the EU remain binding?
A large part of UK employment law is derived from and grounded in EU law. These include issues such as working time, holiday pay, maternity rights and discrimination. As a member of the EU, the UK cannot currently reduce these rights below the minimum level set by EU law, but can choose to introduce greater rights.
The European Union (Withdrawal) Act 2018 (WAB 2018) drawn up by Theresa May’s Government promised that these rights would be saved as ‘retained EU law’ and would continue to apply after Brexit. It contained provisions which ring-fenced workers’ rights. First, there was a lock on EU-derived workers’ rights as at the end of the transition period. This lock meant that before the Government could change workers’ rights, it would have had to consult with businesses and unions about the impact of proposed Bills on workers’ rights. They would then have had to formally state whether the Bill would reduce “workers’ retained EU rights.” Second, the Government would have been required to report regularly on any new workers’ rights adopted by the EU. These reports would have stated whether UK law already recognised rights of the same kind and, if not, whether the Government planned take any steps to keep pace with the new EU rights. Parliament would have had a chance to vote on whether to approve these reports.
The Government published a revised European Union (Withdrawal Agreement) Act 2020 (WAB 2020) on 19 December 2019. This Act enshrines the draft Withdrawal Agreement between UK and EU in law and allows the Government to formally agree the Withdrawal Agreement. It became law on 23 January 2020.
The two key protections in WAB 2018 have been removed from the new Act. The lock on EU-derived rights is gone and there are new provisions which would allow lower courts and tribunals to depart from earlier decisions on EU-derived workers’ rights, whether from EU law or UK courts and tribunals.
In last year’s Queen’s Speech, the Government announced that it would be including clauses on protecting and enhancing workers’ rights in a forthcoming Employment Bill which has yet to be published.
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