Post-Brexit workers’ rights

Businesses seeking certainty on the post-Brexit workers’ rights landscape now have clarity on the government’s intentions.

The Department for Exiting the European Union has published a factsheet on workers’ rights. It stresses two key points:

  1. many UK workers’ rights were in place before the UK entered the European Community;
  2. when it comes to employment protections, UK law often goes further than EU law. For example, the UK offers a greater statutory annual leave allowance and more generous maternity and paternity leave rights.

What does this mean in practice? It is unlikely that there will be immediate changes to workers’ rights once the UK exits the EU. It will largely remain business as usual, with little need to flex existing workplace practices.

However, as EU imported legislation is reviewed and considered by the UK courts, we could start to see unintended consequences.

Maintaining the status quo

The government has committed to protect workers’ rights and maintain the Equality Act protections, which aim to shield people from discrimination in the workplace.

Businesses can expect existing rules to remain in place, such as the need to retain workforce terms of employment after mergers and acquisitions or integrations, and ensuring employees accrue statutory holiday leave during sickness absence.

The government plans to transfer EU case law and regulatory worker protections to UK law on the date the UK officially leaves the EU.

Possible considerations

Under post-Brexit arrangements, the UK’s Supreme Court could, in theory, overrule prior judgements of the European Court of Justice (ECJ), which could lead to the rewriting of legal obligations. The government says this is unlikely, but it is something businesses and their advisers may want to keep an eye on.

The government has said that UK courts will not be bound by post-Brexit ECJ judgements. But it added that those later ECJ decisions may be taken into account by UK judges. It is not yet clear how this will work in practice - in August, Lord Neuberger, the departing president of the Supreme Court, called on the government to give judges clarity on the future position.

It is also important to remember that public sector and private companies have been used to different regimes when it comes to employment rights around equality: public sector organisations directly enforce EU rights while the private sector is subject only to UK legislative incorporation of those rights.

There are many examples where EU law has not been fully incorporated into UK legislation or regulation. This has led to the ECJ stepping in during its cases to override the UK’s interpretation and secure a new route to compliance. The government has so far not tidied up all UK legislation to correct this. It will now need to find a different mechanism to achieve the direct conversion of EU conferred rights.

The full picture is unlikely to materialise immediately after Brexit; changes will have a long lead time. The smartest organisations, however, will remain vigilant to early signs of landscape shifts, and take proactive steps to prepare, plan and adapt.