The European Court of Justice, Luxembourg. UK courts cannot disregard ECJ decisions just because they disagree with them. Photo: Rantic00/Shutterstock
Now that the UK and the EU have agreed on the position of the UK post-Brexit, HR is left wondering what this means for UK employment law in 2021 and beyond. XpertHR’s consultant editor Darren Newman considers the impact of Brexit not only on retained EU legislation, but also on EU case law.
For the past 40 years, EU law has influenced and, on occasion, radically changed UK employment law… But there are many rights scattered through our employment-law legislation that have their origins in an EU Directive… Other employment-law provisions have a more complicated relationship with EU law.
For the past 40 years, EU law has influenced and, on occasion, radically changed UK employment law. Sometimes, the link is easy to spot. Standalone regulations that implement EU directives, such as the Working Time Regulations 1998 (SI 1998/1833) or the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246), tend to come to mind when we talk about EU employment law.
But there are many rights scattered through our employment legislation that have their origins in an EU Directive. Examples include the health and safety rights in the Employment Rights Act 1996 that protect workers who leave their workplace “in circumstances of danger that they reasonably consider to be serious and imminent”. These were implemented as a result of Directive 89/391/EEC (the health and safety Framework Directive).
Other employment law provisions have a more complicated relationship with EU law. The right to a written statement of terms and conditions set out in s.1 of the Employment Rights Act 1996 was first introduced by the Contracts of Employment Act 1963 – but was amended to comply with the 1991 Proof of Employment Relationship Directive (91/533/EEC). Much of the Equality Act 2010 is underpinned by EU law, but in key respects it goes beyond what is required by the various Directives dealing with discrimination. The relationship between EU and domestic employment law is messy and complicated. Luckily, the terms of our exit from the EU do not require us to untangle the two.