Lawyers raise fears about weakening of employment rights after Brexit

There is a real prospect of divergence between UK law and EU law after Brexit and a weakening of workers’ rights, according to the Employment Lawyers Association.

It has just published a paper which raises concerns about Government promises that post-Brexit UK employment law will keep pace with European workers’ rights.

It says the Court of Justice of the European Union [CJEU] currently performs two clear roles – it is the arbiter of disputes brought by or against the UK Government and it provides guidance on the application of EU law to domestic courts and tribunals who seek such guidance. After the UK leaves the EU, UK courts may have regard to CJEU case law but will not be bound by it.

The ELA, an apolitical group of around 600 employment law experts, says it is concerned about how UK courts and tribunals will interpret CJEU case law after the UK exits the EU and about the practicalities of implementing the Government’s proposal to ensure that UK ‘workers rights’ keep pace with those of EU workers.

It states: “Without the government accepting and introducing legislation that makes it clear that, at least in relation to ‘workers rights’ (which will need to be defined), the UK will be bound by CJEU case law, the Government will not be able to ensure UK ‘workers rights’ keep pace with those of EU workers.”

It adds: “There is a real prospect of divergence between UK law and EU law, and of a weakening of the application of CJEU jurisprudence, leading to a diminution of workers’ rights.”

The ELA notes discussions about setting up a common rulebook between the EU and the UK, but says it is not clear how this might work. It says it is unlikely that the UK would sign up ‘carte blanche’  and that it is unclear how CJEU case law that affects workers’ rights would be incorporated given that such case law will not be binding post Brexit Day.

Without legislation that makes it clear that, at least in relation to ‘workers rights’ , the UK will be bound by CJEU case law, the ELA says the Government will not be able to ensure UK ‘workers rights’ keep pace with those of EU workers.

It suggests there may need to be some form of Ministerial certification that regard would be had to CJEU/EU law in the framing of any new legislation and says that would need to be policed by means of judicial review.

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