Anthony Korn Examines The Potential Implications Of Brexit On Employment Law

One area of law where Brexit may have an impact is employment law.

Leaving aside Treaty obligations guaranteeing the free movement of workers (Article 45) and the principle of equal pay for male and female workers for equal work or work of equal value (Article 141), most of the 'social' obligations have been introduced by way of EU Directives.

Since the UK joined the EU, the UK has been required either to introduce or amend its laws on discrimination (including pregnancy and maternity discrimination and parental leave), health and safety, working time, TUPE, part time workers, fixed term workers and agency workers (to name but a few) in order to implement European Directives. In appropriate circumstances, companies have been required to set up European Works Councils to implement the European Works Councils Directive and mechanisms for Information and Consultation to give effect to the Information and Consultation of Employees Directive. Insolvency law has been amended to give effect to the Insolvency Directive.

According to Butterworths Employment Law Handbook, the employment lawyers bible, there are no less than 33 European Directives which the UK has been required to implement.

Case law has also established that the UK is required to interpret those laws and any other laws based on EU Directives in a manner which gives effect to those Directives. Indeed case law has established that UK courts and tribunals are required to amend or 'read in' wording to our domestic law which gives effect to those Directives. For example in EBR Attridge Law LLP v Coleman [2010] IRLR 10 the EAT in effect rewrote Section 3B of the Disability Discrimination Act 1995 (now Section 13 of the Equality Act 2010) to include a right to complain of associative discrimination where a mother of a disabled child complained of associative discrimination arising out of her caring responsibilities for her child. More recently in Bear Scotland Ltd v Fulton [2015] IRLR 15 the EAT gave effect to CJEU rulings by allowing claims to be brought for overtime pay and commission payments during periods of statutory holiday again by making it clear that the normal definition of remuneration did not apply to claims made under Regulation 13 of the Working Time Regulations 1998.

In some instances where the UK has failed to comply with EU Directives so called infarction proceeding can be brought against the UK by the European Commission, for example in 1981 the European Commission...

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