Workers’ rights under threat post-Brexit, says Employment Lawyers Association
The Employment Lawyers Association (ELA) is concerned UK workers’ rights will be threatened as a result of Brexit.
Questions remain over how courts and tribunals will interpret or rely upon case law from the Court of Justice of the European Union (CJEU) after the UK exits the EU. ELA, which is an apolitical organisation with approximately 6,000 employment lawyer members, also has concerns about the practicalities of implementing the government’s current proposal to ensure that UK workers’ rights keep pace with those of EU workers.
“Our employment law is rooted in the EU and a divergence is likely to lead to weaker workers’ rights in the UK,” said Paul McFarlane, chair of ELA’s Legislative & Policy Committee. “The stated position is that leaving the EU will mean the end of the jurisdiction of the CJEU in the UK. On the face of it this is a clear-cut position. The implications are, however, more complex than might first appear.”
ELA is concerned that without new legislation that makes it clear that the UK will be bound by CJEU case law, the government will not be able to ensure UK workers’ rights.
“There have been a number of seminal employment law cases where the guidance of the CJEU has been particularly significant, for instance, Lock v. British Gas Trading Limited, which dealt with the application of the Working Time Directive to holiday pay calculations, or Dekker v. Stichting, which simplified the tests that a woman complaining of pregnancy discrimination needs to satisfy. The loss of such guidance will have a significant impact upon UK employment law.
“This month it was reported that the Prime Minister was proposing to introduce a draft Bill guaranteeing that UK workers’ rights will keep pace with those in Europe. It is very unclear how this would in fact work in practice,” said Paul McFarlane.
ELA is also concerned current employment cases that are not concluded by the time of Brexit will be negatively impacted. We may see cases where a party reasonably anticipated a particular outcome from the CJEU, which is not the outcome ultimately provided by the domestic court. This seems to cut across the principle of justice being seen to be done.
“Brexit is likely to cause one of the biggest upsets to UK employment law and this is a worry for all, but in particular, workers. The CJEU has often, though not always, interpreted Directives in favour of workers bringing claims and has created some powerful and important case law in the process. It is very concerning what might happen post-29 March – this is a complex situation and unfortunately there is not a simple solution,” said Paul McFarlane.
ELA’s paper, Brexit - Court of Justice of the European Union (‘CJEU’): View of employment lawyers, is available to read in full here.