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The impact of Brexit on Employment Law

Author: Sarah Naylor

Since the news emerged about Britain exiting the EU, there has been much discussion about how this will affect various areas of the law. In terms of employment law, many experts and practitioners have taken the view that not very much is likely to change.

The House of Commons produced a briefing paper which comments on Brexit in the context of employment law. It gives a some indication of what may be in store and is a helpful summary of the current position of the interface between UK and EU employment law, and the UK Government’s position on the matter.

The main gist of the briefing is that any EU derived employment rights that are set down in  primary UK legislation will probably be insulated following our Brexit, although they will be more susceptible to change than before.  However, most of our employment laws are contained in secondary legislation and the position here is more uncertain.

Something that will no doubt be key is what the status of the European Court of Justice (ECJ) will be following our Brexit and whether precedent set by the ECJ will continue to be binding in the UK courts. Post-Brexit, the UK courts would no longer be required to follow existing and future ECJ decision, though they may regard them as being persuasive. This could cause the re-litigation of controversial judgments decided by the ECJ, for example the case relating to calculation of holiday pay which has been one of the most impactful decisions of the last couple of years.

Whilst this briefing paper gives us some indication and guidance about what to expect, ultimately it could all still change and things are obviously in very early stages. It will take quite some time I think until we start to see employment laws affected by Brexit, if they are affected at all, so for now and the foreseeable future, it is business as usual.

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