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The Implications of The Brexit on Employment Law

The result of the Brexit referendum has the potential to have a very substantial impact on employment law in the UK.

A significant amount of UK employment law is derived from EU legislation and from the decisions of the European Court of Justice (ECJ). In particular, UK laws in relation to duties to agency workers, discrimination rights, working time regulations, collective consultation obligations, transfer of undertakings regulations (TUPE) and family leave all derive from or are heavily influenced by the EU.

In theory, now that the UK has voted to leave the EU, the government could repeal all of this legislation. In reality, however, it is more likely that the government will retain, or perhaps amend, the existing EU-derived legislation and the decisions of the ECJ will continue to be persuasive (albeit non-binding).

Practically speaking, it would be controversial for the government to remove rights and protections to which workers have become accustomed. Indeed, some laws existed prior to EU legislation. For example, race and disability discrimination laws preceded EU anti-discrimination obligations. The EU has, in some case, simply bolstered existing provisions.  

Furthermore, in order for the UK to retain a trade relationship with the EU, it is likely that the EU would demand a minimum adherence to EU employment regulations.

If any legislation were to be completely revoked it is likely that it would be the Agency Workers Regulations 2010, which are complex, unpopular with businesses and relatively new, such that it would be easier for the government to remove them.

It remains to be seen to what extent the government will revoke or amend EU-derived employment laws as a result of the Brexit. Once the government has invoked article 50 of the Treaty of Lisbon, the UK will have two years to negotiate its exit from the EU. Any changes to employment law are therefore unlikely in the short-term future. 

This bulletin is for general guidance purposes only and should not be used for any other purpose.

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