Brexit threatens ‘biggest upset in employment law’ the UK has seen, lawyers warn

27 Feb 2019 By Lauren R Brown

Divergence between UK and EU legislation likely to weaken workers’ rights and cause confusion as courts struggle to reinterpret laws

Brexit is likely to cause confusion across tribunal courts and lead to weaker workers’ rights in the UK, a group of lawyers has warned.

A report by the Employment Lawyers Association (ELA), which represents around 6,000 employment lawyers in the UK, expressed concern that the government would not be able to ensure UK workers’ rights without new legislation to make it clear the UK would continue to be bound by EU case law.

Paul McFarlane, chair of the ELA’s Legislative and Policy Committee, said: “Our employment law is rooted in the EU and a divergence is likely to lead to weaker workers’ rights in the UK. 

“Brexit is likely to cause one of the biggest upsets to UK employment law and this is a worry for all, but for workers in particular. The CJEU [Court of Justice of the European Union] has often 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.”

The CJEU is the collective term for the EU’s court system, which consists of three courts, including the European Court of Justice.

While the UK remains in the EU, the CJEU performs two roles: it arbitrates disputes brought by or against the UK, and also interprets European law by setting precedents which are then followed by domestic courts and tribunals in their own decisions.

UK courts will still be able to refer to the case law of the CJEU after the UK leaves the EU, but will not be bound by it. The loss of such guidance on areas including the application of the working time directive and holiday pay calculations would have a “significant impact on UK employment law”, McFarlane warned. 

Examples cited in the group’s report included Dekker v Stichting, a case which led to the simplification of the legal tests needed to satisfy a complaint of pregnancy discrimination, and Enderby v Frenchay, which set the precedent that the employer in an equal pay claim had to prove there was a genuine material factor other than sex to explain significant differences in pay between two groups comprised mostly of different genders.

Paul Holcroft, associate director at Croner, echoed the group’s concerns. He said: “The interpretation of UK employment law is not an easy feat for employers, HR or workers themselves and the guidance received from the CJEU has been invaluable across many areas.  

“Removing this interpretation body may leave employment tribunals and businesses spending additional time grappling with the application of EU principles to UK law. As with many aspects of the ongoing Brexit process, confusion is rife and clarity is needed to ensure all parties understand the position of UK employment law going forwards.”

Research published this week have shown the UK’s tribunal service is already struggling with its largest backlog of cases since fees were abolished in 2017.

This month, the prime minister proposed introducing a draft bill guaranteeing that UK workers’ rights would keep pace with those in Europe. However, McFarlane said it was “very unclear” how this would work in practice. 

The ELA also expressed concern that current employment law cases that were not concluded before Brexit would 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,” McFarlane said. “This seems to cut across the principle of justice being seen to be done.”

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