Brexit risks for workers

Uncertainty about the interpretation of EU case law post-Brexit is threatening workers’ rights, employment lawyers have warned.

With just one month to go until the UK’s departure, questions remain as to how courts and tribunals will interpret case law from the Court of Justice of the European Union (CJEU), the Employment Lawyers Association (ELA) said this week in a paper, Brexit: CJEU. Post-Brexit, UK courts may have regard to CJEU case law but will not be bound by it.

‘Perhaps of greatest significance will be the loss of the preliminary reference mechanism,’ the ELA paper warns.

‘These will be referrals made by domestic courts and tribunals seeking guidance on the application of EU law… If such guidance is not available, then, whilst the court or tribunal will still be likely to reach a decision, it is arguable that such a decision will be deficient, or will be seen to be deficient, because of the fact that guidance was clearly required but not supplied.’

Paul McFarlane, chair of ELA’s legislative and policy committee, said: ‘There have been a number of seminal employment law cases where the guidance of the CJEU has been particularly significant, for instance, Lock v British Gas Trading Limited, which dealt with the application of the Working Time Directive to holiday pay calculations, or Dekker v Stichting, which simplified the tests that a woman complaining of pregnancy discrimination needs to satisfy.

‘The loss of such guidance will have a significant impact upon UK employment law.’

The ELA also expressed doubt about the practicalities of the government’s proposals to ensure UK workers’ rights keep pace with those of EU workers.

Meanwhile, the government published a document this week, Implications for business and trade of a no deal exit. For lawyers, it states, no-deal would mean ‘the loss of the automatic right to provide short term “fly in fly out” services, as the type of work lawyers can do in each individual member state may vary, and the loss of rights of audience in EU courts. UK lawyers and businesses would be responsible for ensuring they can operate in each Member State they want to work in.’