Keep Informed: Its Beginning to Look A Lot Like Brexit – What will the Withdrawal Bill Mean for Employment Rights?

Employment Law, For Employers


Whilst most businesses are preparing for Christmas and feeling festive, the Government is continuing the process of the UK’s withdrawal from the EU.

The government published the Withdrawal Agreement Bill today (20 December 2019) and this was today passed on its second reading in the House of Commons. The Bill sets out the terms under which the UK will leave the EU and it includes a few particular points which may affect UK employment laws and rights which come from EU legislation.

The interpretation of many of our employment laws and rights comes from EU legislation and decisions of the European Court of Justice (ECJ). The Withdrawal Bill proposes to give ministers the right to make regulations which tells the lower courts (and, indeed, Tribunals) which EU laws and ECJ decisions which they will be bound by, and the tests that will apply if they want to divert from the EU precedent.

This means that there may be some significant legal uncertainty initially after the withdrawal from the EU. The original proposal (under Theresa May’s government) was that decisions of the ECJ would be retained and it would be for the Supreme Court to make amendments and deviate where this was necessary, but a government spokesman has now stated that “the bill will ensure that the Supreme Court is not the only institution able to consider retained European Court of Justice rulings.”.

The criticism of this proposal is that it may make it much easier for the government to retract or amend employment rights. However, a spokesperson said that “in relation to workers’ rights, there is a commitment by the government in its manifesto, which will be honoured in full, to ensure that we protect and enhance workers’ rights. And that will be done in UK law.”.

The Government has indicated that certain employment rights and laws will be reiterated (or improved) in a new Employment Bill. Proposals include unpaid leave for carers, allowing workers to keep their tips, and increases to national living wage. There are also proposals to introduce an enforcement body to protect workers’ rights, and potentially there may be redundancy protection for women returning from maternity leave.

The Queens Speech also indicated that the Employment Bill will “encourage flexible working” but it remains to be seen what form this will take, but here at Thrive we are excited to see what might be introduced in this area.

Brexit Update (January 2020):

Since the Withdrawal Agreement Bill passed its second reading in the House of Commons on 20 January 2020, it has now passed its final reading in both the House of Lords and House of Commons and received Royal Assent on 23 January 2020. This means the UK is now set to leave the EU tonight (31 January 2020) at 23:00 when the European Union (Withdrawal Agreement) Act 2020 will come into force.

However, even though the UK will no longer be part of the EU, the effect of the Withdrawal Agreement Bill will not be significant until 31 December 2020. This is because the 11 months between 31 January 2020 and 31 December 2020 is the transition period, during which the UK will still follow existing EU legislation and regulations.

There was no change to the proposals which we covered above: the European Union (Withdrawal Agreement) Act 2020, under section 26 (1), will give Minsters the power to make regulations to determine when lower courts and tribunals should depart from existing EU law. This will allow ministers to change the test the Supreme Court currently follows when they determine if EU law should be departed from (as currently the test is “only departing when it appears right to do so”).

From a technical legal standpoint, the European Union (Withdrawal Agreement) Act 2020 means all employment rights under the EU legislation are currently put into UK law. However, there is always the possibility now for the government to retract or amend these rights in the future.

There have been no further updates on when the new Employment Bill is set to be introduced to Parliament and indeed what is proposed to be contained within that bill.

If you have any further questions about how Brexit may affect your business or your employees, please get in touch.

Written by Alicia Collinson

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