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Brexit: What happens to employment law?
With the referendum vote earlier this year, the UK has set a course on leaving the European Union (EU). Whether you voted for or against the decision, it will affect all aspects of our lives over the next few years.

The vote has led to uncertainty about what changes may or may not take place and the timescales involved. In particular it raises concerns for employers with regards to potential changes to employment law.

At this stage, it is impossible to say with any certainty what will happen but it may depend on where the legislation originated:

Although Parliament sets out legislation in Acts or Regulations, the interpretation of the law by Judges in higher courts (such as the Employment Appeal Tribunal, parts of the High Court and the Court of Appeal) in themselves become law and are binding on lower courts (including the employment tribunals).

Currently some of our legislation originates from the EU. There are two ways in which the EU affects UK employment law: The EU issues Regulations and Directives which must be followed by member states, and decisions of the European Court of Justice (ECJ) are binding on all UK Courts.

In employment law we often deal with the way that EU directives are enacted into law by the UK Government. Sometimes the UK implements only the bare minimum requirements of a directive but in other cases it enhances the requirements – e.g. setting out a minimum statutory amount of annual leave as 5.6 weeks per year where the EU Working time Directive only specifies a minimum of 4 weeks.

Some UK employment law has nothing to do with the EU at all, being developed by the UK government - for example the right to request flexible working and the introduction of shared parental leave.

So what will happen when we leave the EU?

The UK may no longer be required to implement directives. However, there is some uncertainty here because there are countries, such as Iceland and Norway that are not members of the EU but are still bound to implement EU directives because they have trade deals with the EU where it is required. Even after we leave the UK, we may find ourselves bound to implement certain parts of EU law as a result of any trade agreements that are made.

Even if the UK is no longer required to implement EU directives, it does not mean that there will be no new employment law. The UK government will continue to make and amend its own laws.

It is too early to say what will happen to precedents set by the European Courts or whether existing laws originating from the EU will be repealed. The only thing we can be certain about is that any changes will not take place quickly!
Posted on 19 Nov 2016

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