Brexit impact on employment law – Parliamentary briefing published

The House of Commons has produced a briefing paper entitled “Brexit: Impact Across Policy Areas” which states that David Davis MP is not attracted by the idea of rewarding those who voted for Brexit by cutting their employment rights.

The paper identifies the main legislative areas which are underpinned by EU Law and which cannot at present diverge from EU law.  These include rights relating to

• annual leave
• agency worker rights
• part time worker rights
• fixed term worker rights
• health and safety obligations
• state guaranteed payments upon an employers insolvency
• collective redundancy rights
• information and consultation rights
• the right to a written statement of terms and conditions
• posted workers rights
• paternity, maternity and parental leave
• protection of employment upon the transfer of a business
• anti discrimination legislation.

Leaving the EU will not automatically repeal these provisions but, subject to the terms of withdrawal, these laws will then be capable of repeal or amendment. The briefing paper points out that the appetite for changing these laws will depend on the “political complexion of a post- Brexit Government”.

The paper considers the likelihood of increased employment litigation to challenge what were previously well established case law principles derived from the Court of Justice of the European Union, as domestic courts will no longer be bound by those decisions.  There is a suggestion that temporary “patching” legislation could be deployed to help place a moratorium on such litigious challenges until uncertainty can be addressed by domestic legislation.

As for the need for change, David Davis points out that “all the empirical studies show that it is not employment regulation that stultifies growth, but all the other market related regulations”.