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No change to workplace rights if no Brexit deal

There will be no changes to UK employment and workplace rights derived from EU law if the UK leaves the EU without a formal deal in place, the UK government has confirmed.24 Aug 2018

Many existing UK workplace rights and protections are derived from EU law, including those related to working time; family leave entitlements; discrimination and harassment; transfer of business or contracts; protections for agency workers; and certain health and safety requirements.

These provisions will be incorporated into UK law by way of the EU (Withdrawal) Act, meaning there will be no changes to existing policy, the government said, in a technical notice published as part of a series highlighting the implications of a 'no deal' Brexit for businesses and consumers. There would, however, be some implications around cross-border employer insolvency and recognition of European works councils, according to the note.

"The EU (Withdrawal) Act 2018 brings across the powers from EU Directives," the government said in the note. "This means that workers in the UK will continue to be entitled to the rights they have under UK law, covering those aspects which come from EU law ... Domestic legislation already exceeds EU-required levels of employment protections in a number of ways."

"The government will make small amendments to the language of workplace legislation to ensure the existing regulations reflect the UK is no longer an EU country. These amendments will not change existing policy. This will provide legal certainty, allowing for a smooth transition from the day of EU exit, and will ensure that employment rights remain unchanged, including the employment rights of those working in the UK on a temporary basis."

The note confirms that employer insolvency protections will continue for people living and working in the UK for a UK or EU employer in a 'no deal' scenario, and that those employees will still be able to bring forward claims in the same way as at present. However, UK and EU employees that work for a UK employer in another EU country may no longer be protected, depending on how that EU country has implemented the guarantee required by EU law.

Existing European works councils, set up to represent employees where the workforce is split across two or more EU member states, will continue to be recognised by the UK "as far as possible" if there is no deal. However, changes will be made to UK regulations to prevent new European works councils from being established in the UK.

Employment law expert Euan Smith of Pinsent Masons, the law firm behind Out-Law.com, said that the technical note had few immediate implications for UK employers. The government intends to publish more technical notices on the implications of a 'no deal' Brexit in the coming weeks, and employers would be watching with interest for any announcements on the rights of EU nationals in the UK, he said.

"From an employment law perspective, the only thing which is likely to change immediately is that the Court of Justice of the EU (CJEU) will no longer have jurisdiction in UK matters. Accordingly, employment law cases that arise after that date will not be capable of being referred to the CJEU: they will stop at the Supreme Court. That's a long-term issue though, rather than immediate; and is something which has always been anticipated, whether a deal is done or otherwise," he said.

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