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What does the Brexit withdrawal agreement mean for UK employment law?

23 Nov 2018

It is easy to lose sight of the bigger picture when there is such a political furore played out in the media over our withdrawal from the European Union.

Let us not forget that the Withdrawal Agreement that was published last week only covers the ’transition period‘ ie the period from 29 March 2019 until 31 December 2020 (unless an extension is agreed).

The bigger picture, and the two questions considered here are, firstly, what does the Withdrawal Agreement mean for UK employment law and, secondly, what will the framework be for UK employment law in the longer term?

  • What does the Withdrawal Agreement mean for UK employment law?

The answer is pleasingly simple. Not much. During the transition period, EU law will continue to apply to UK law as it currently does. Similarly, the Court of Justice of the European Union (CJEU) will continue to have ultimate jurisdiction over our courts during the transition period. That means that any case brought by or against the UK before the end of the transition period can be heard by the CJEU.

For those that want to get stuck into the Agreement itself (not recommended!) Article 24 in Chapter 2 makes clear that no workers or self-employed people should suffer any form of discrimination on the grounds of their nationality. That protection covers EU citizens working in the UK, as well as UK citizens working in the EU. Professional qualifications will continue to be recognised during the transition period across the EU as they currently are.

  • What will the framework be for UK employment law in the longer term?

Once the transition period is over, we enter a whole new world. But will employment law in that new world be all that different to what we have now? It remains to be seen, but all the indications are that the rights and protections afforded to UK workers will continue largely unaffected. That is most likely to mean:

  • Continued protection from unfair dismissal
  • The same added safeguards from discrimination for employees with ’protected characteristics‘ – age, sex, race, disability, sexual orientation etc.
  • Robust whistleblower protection
  • The same rights to annual leave, maternity, paternity, and adoption leave
  • Continuing to use the TUPE rules to protect employees’ contractual terms on the transfer in ownership of a business, or where service contracts are won and lost

That is certainly the impression repeatedly given by Theresa May, who has talked in speeches about not just protecting workers' rights post Brexit, but enhancing them. However, there is no flesh on these bones yet, and it is worth noting that earlier this year there were reports of the Government having drafted a confidential impact assessment on areas that could be focussed on to improve and boost the UK economy post-Brexit. Apparently, that assessment identified the need to 'maximise regulatory opportunities'. It was reported that a relaxation of workers' protections, particularly around working hours, rest breaks and annual leave, may be an area for change.

In a time of such incredible political sensitivity, with the Conservative Government struggling to maintain popular support, you might think any weakening of workers' rights would be political suicide. Let’s wait and see.  

Greg Burgess is a Partner in DMH Stallard’s Employment Team. Greg works with business owners and senior executives to help them with the problems and challenges presented by their workforce, including those triggered by Brexit. If you need support on any challenges you are facing, please contact Greg or any member of our team on 01293 558547. 

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