Brexit – what does it mean for Employment Law?

You will be aware that a great deal of our Employment Law is what we call “European law”. What will happen to those laws when we are no longer a member of the EU?

European law is made in two ways:-

• By Directive (eg. Working Time Directive, or Acquired Rights Directive); or
• By Regulation (eg Social Security Regulations).

Directives

To become law in the UK, Directives need to be given effect by an Act of our Parliament. So, for example, the Acquired Rights Directive was made law in the UK via the TUPE legislation.

So whilst we tend to think of TUPE as European law, it is in fact UK law albeit derived from Europe. This is why there are differences in the way that for example German law has adopted the Acquired Rights Directive.

This is also why Brexit alone will have no impact on TUPE, and any other European laws that were made by Directive and adopted into our local law.

Regulations

However, law that is made by Regulation has “direct effect” in each member state without the need for any local legislation. It is the European Communities Act 1972 which gives these Regulations legal effect. The European Communities Act also governs our membership of the EU, and therefore Parliament will have to repeal the European Communities Act in order to effect Brexit. The impact would be that all European Regulations would cease to have legal effect in the UK, leaving huge holes in our legislation, and huge uncertainty.

The Great Repeal Bill

To prevent this from happening, the government is proposing The Great Repeal Bill. This is a great name for a piece of law, but it is not an wholly accurate description of what the law will do. It will repeal the European Communities Act; but in addition to that, it will also adopt into local legislation all of the European law that has been made by Regulation.

Therefore, perhaps surprisingly, Brexit itself will do little to change the huge body of law that is derived from Europe and in accordance with which we are used to acting.

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