Whichever form of Brexit we end up with, it will certainly impact upon how law firms handle employment rights. Whether you’re an adamant Remainer or a dyed-in-the-wool Brexiteer, there’s bound to be some confusion.
In the event of a no deal scenario, the government has already set out plans. These come in the form of a series of technical notices which set out the position if no agreement is in place when the UK leaves in March 2019.
You may well believe that now Theresa May has a deal with Brussels, all is well. However, Parliament still has to agree the deal and that is by no means a foregone conclusion. I don’t bet on politics just as I don’t bet on football – and I’m a Man City fan!
So, what guidance is The Government giving on a no deal Brexit? Let’s take a look.
This notice provides guidance on the implications to employment law in the event of a no deal. A large proportion of UK employment legislation is of EU origin. This includes:
These are the most familiar – there are many more. The technical notice clearly states that the EU (Withdrawal) Act of 2018 will come into play. This will convert powers derived from EU Directives into UK law. Naturally, the government will make amendments where it sees fit to do so. Fundamentally, the aim is to allow UK workers to continue to enjoy the benefits of the former EU regulations.
Following a no deal outcome, the government indicated a couple of possible changes. It is unlikely that these will affect many legal practices, but they are worth a mention.
Currently, workers can request European Works Councils (EWC) to be established. They provide information to, and consult with, employees on issues spanning two or more European Economic Area states. The government indicated that, following a no deal Brexit, it will recognise existing EWCs as far as possible. However, the creation of new EWCs will not be allowed.
In the event of no deal, UK employees who work for a UK or EU employer will enjoy the same protection they have now. In other words, the EU Insolvency Directive will become part of UK law. UK employees will still be able to make claims in employer insolvency cases. UK and EU employees working outside the UK in an EU country for a UK employer may still be protected under the national guarantee fund established in that particular country. However, the government gives no guarantees in this particular instance.
The short answer is: pretty much the same as it means for most UK businesses. The implications of the most recent technical notice are limited but it is likely further notices will follow.
The most prominent change following a deal or a no deal Brexit will be the position of the courts. The European Court of Justice will no longer have jurisdiction in the UK. The UK Supreme Court will be the last port of call in employment disputes. How the Supreme Court will interpret the impact of earlier EU case law remains to be seen.
If you haven’t started already, start planning now. The Government is making contingency plans for a no deal Brexit and that means you should be doing the same. The key questions to ask yourselves are:
I’m sure there are many people who are fed up to the back teeth with hearing about Brexit. Most legal professionals to whom I speak just want it all done and dusted as soon as possible. As things stand at the moment, it appears employment law will remain largely unchanged in the short to medium term. However, it makes sound business sense to have a contingency plan, to get your ducks in a row and to plan for the longer term.
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