All EU-derived employment law and directly effective EU employment legislation has continued to apply to the UK during the implementation period, and the European Court of Justice (ECJ) has continued to have jurisdiction in the UK, but this all comes to an end in less than 30 days, after the end of the transition period on 31 December 2020.
UK can depart from EU case law
At the end of the implementation period, a new body of retained EU law will be created and the effect of all EU law as it stands at that moment will be preserved. UK legislation enacted after 31 December 2020 will take precedence over retained EU law. Where a new EU directive is adopted before the end of the implementation period but the transposition deadline is after 31 December 2020, the UK Government is not obliged to implement it.
The Government has published a draft Statutory Instrument, The European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020, which provides that the Court of Appeal in England and Wales, the Inner House of the Court of Session in Scotland, and the Court of Appeal in Northern Ireland will be able to depart from EU case law.
After 31 December 2020, the ECJ will also no longer have jurisdiction over UK courts and its future decisions will not be binding.
Murky waters for UK employers
UK employers are still facing the same uncertainty they were in June 2016 after the referendum. With less than a month to go, there has been no official statement regarding the Government’s planned changes to employment law.
But we know that changes are likely, as the Brexit deal struck by Boris Johnson moved references to maintaining a level playing field regarding employment standards from the legally binding Withdrawal Agreement to the non-binding political declaration.
This means that the UK could decide not to align itself with EU regulations but of course this is dependent on the terms of any trade deal, and the Government will no doubt have in mind the fact it owes its majority to thousands of Labour voters who voted Conservative at the last election.
What to expect in 2021?
So what changes to UK employment law can we expect? It has been suggested that a number of changes could be on the horizon:
- A cap could be introduced on discrimination awards.
- Trade union recognition could be made more difficult and it is likely that there will be further restrictions on strikes in the transport sector.
- Changes could be made to the Working Time Regulations, including the right of workers on long-term sick leave to accrue holiday and carry over unused holiday entitlement to the next leave year, limiting holiday pay to basic pay and abolishing the 48 hour limit on working time.
- Rights under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) could be reduced, for example, it could become easier to harmonise terms and conditions or to dismiss employees on a transfer. Service provision changes could also be taken out of the scope of TUPE.
- Protection for agency workers could be reduced.
Employers will be waiting with bated breath for news of any developments regarding a trade deal with the EU, as will so many businesses who have been navigating through uncertainty over the past four years, exacerbated this year by the global COVID-19 pandemic which has brought its own set of challenges.
This provides summary information and comment on the subject areas covered. Where employment tribunal and appellate court cases are reported, the information does not set out all of the facts, the legal arguments presented and the judgments made in every aspect of the case. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, we cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.
