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EU employment law made before 1 January 2021 was converted into domestic UK law, and will be known as Retained EU Law

Michael Connolly

6 min read

The UK and EU has published the (TCA), a (UK Government) and an (EU Commission). In general, in exchange for tariff free access to the single market, the parties have agreed to maintain a 鈥榣evel playing field鈥.

For employment, this means that UK employers should not be able to lower employment rights and costs. This prevents them from gaining an unfair competitive advantage over EU businesses. This is achieved for Northern Ireland in a quite straightforward way, as it continues to be bound by EU law as before. The matter is more nuanced for the rest of the UK (鈥楤ritain鈥).

By a 鈥榥on-regression鈥 clause, Britain agreed not to reduce employment rights below the standards existing on 31 December 2020, but only if this affects trade or investment. Britain may diverge from EU employment laws but the EU may apply 鈥榬ebalancing measures鈥 if it obtains proof of a material impact on trade or investment. This requires more than just conjecture or a theoretical possibility.

Commitment not to reduce employment rights

This 鈥榥on-regression鈥 clause (TCA, Pt 2, Title X1, art 6.2) is not subject to the Agreement鈥檚 main dispute resolution mechanism. Instead, a panel of experts will decide whether either party has fallen short of this commitment. This means the European Court of Justice (ECJ) no longer has a direct role in Britain鈥檚 employment law. Nonetheless, the EU can still challenge legally any weakening of Britain鈥檚 employment rights, providing it has a material impact on trade or investment, material proof which would be required. This is a higher bar than what would have been the case before 2021, where the EU would only have to show an inconsistency between its law and UK law, typically this is where the UK has failed to implement fully an EU Directive. (See e.g. , on a failure to provide for equal value pay claims; , on the SDA 1975 not covering non-binding collective agreements, nor employers with fewer than six employees). If an EU challenge succeeds, it may introduce 鈥榬ebalancing measures鈥, which include tariffs.

Existing 鈥楻etained鈥 EU Law

EU employment law made before 1 January 2021 was converted into domestic UK law, and will be known as Retained EU Law. It will continue in force as before. (EU (Withdrawal) Act 2018, s 7) Some subtleties lie in what the tribunals and courts might do, which are considered below.

  1. If a tribunal or court finds that existing domestic legislation falls short of this Retained EU Law, it may well find it has to read words into the legislation to conform with a pre-existing ECJ decision. This has not been unusual, see e.g. Falkirk Council v Whyte [1997] IRLR 560 (EAT); [2014] 1 WLR 3615 (CA) [45(5)]. Prior to Brexit, courts felt compelled to follow EU law and afforded themselves 鈥榖road and far-reaching鈥 discretion to read words into, or out of, non-compliant domestic legislation: [2010] Ch 77 (CA) [38]. This could have the effect of EU and UK law converging, rather than diverging. Examples could include the objective justification defence in the Equality Act 2010 (ss 19 & 69) which (arguably) falls short of the strict Bilka necessity test,1 and for equal pay liability where there is a 鈥榮ingle source of pay鈥.2
  1. The Supreme Court and Court of Appeal can choose not to follow pre-2021 ECJ decisions if it 鈥榮eems right to do so鈥.3 It is likely that only a dramatic decision would be enough to diverge from EU law to such a degree that it affects materially trade or investment, and so invoking rebalancing measures.
  1. 鈥楢ny question as to the validity, meaning or effect of any retained EU law is to be decided 鈥(a) in accordance with any retained case law and any retained general principles of EU law鈥︹. (EU (Withdrawal) Act 2018, s 6(3)). The general principles of EU law are retained, although not the Charter of Fundamental Rights (EU (Withdrawal) Act 2018, ss 6(7), 5(4) respectively). 

New ECJ Decisions

The starting point is that courts, and employment tribunals (ET), are no longer bound to follow new ECJ decisions (issued in 2021 and beyond) but may have regard to them (as well as 鈥榓nother EU entity or the EU鈥) where relevant (EU (Withdrawal) Act, ss 6(1) and (2)). The phrase 鈥榳here relevant鈥 replaced the proposed phrase 鈥榳here appropriate to do so鈥, which was , Lord Neuberger, for lacking clarity. The new phrase does not appear any more concrete. After all, a tribunal is hardly likely to consider irrelevant decisions, while the whole matter remains optional (鈥榤ay have鈥).

Nevertheless, the 鈥榤ay have regard鈥 facility could cause disputes in any employment tribunal case on a topic where the ECJ hands down a new and potentially relevant judgment. One side might argue that it should be taken into account to maintain conformity, with the other side arguing that the tribunal is not obliged to do this. This argument could become bogged down in economic matters of the material effect on trade and investment and the risk of a decision triggering rebalancing measures. However, there are two reasons why this may not occur. First, arguments are likely to be speculative, when the trigger for divergence requires material evidence of the effect. Second, this is a policy matter that the tribunal (or court) may consider beyond its jurisdiction, and better addressed by Parliament.

New EU Employment Directives

Britain is free to ignore any new EU Directives, but, once again, if a failure to implement a Directive results in a significant divergence that materially impacts trade and investment, the EU may instigate rebalancing measures. There are three new EU employment Directives due to be implemented over the next two years. The UK is largely compliant with these. They concern (Directive 2019/1937/EU, due for implementation by 17 December 2021 (art 26)), (Directive 2019/1152/EU, 1 August 2022 (art 21)), and (Directive 2019/1158/EU, 2 August 2022 (art 20)). The EU Commission has (COM/2020/682 final), which would seek to align processes and implementation of a minimum wage, but not the amount paid. Again, the UK is largely in compliance already. 

Employment rights that could be repealed without breaching the TCA 

Some employment rights exist irrespective of EU membership, and so the UK is free to repeal them. Indeed, many were repealed in 2013 by the Coalition Government in an attempt to reduce business 鈥榬ed tape鈥 (see e.g. Enterprise and Regulatory Reform Act 2013). Significant rights surviving that reduction are Unfair Dismissal4 and the TUPE rights that extend to Service Provision Changes (enabling employees鈥 rights to be transferred when services are contracted out).5 Providing the EU does not legislate in these areas, there is nothing in the TCA to prevent the repeal of these rights.


Dr Michael Connolly is a Reader in Law at 小蓝视频 Law School. The author would like to thank Panos Kapotas and James Hand for their valuable comments in earlier drafts of this post.

Endnotes

1 Case 170/84 Bilka-Kaufhaus v Weber von Hartz [1984] ECR 1607. See JA Lane, R Ingleby, 鈥業ndirect discrimination, justification and proportionality: are UK claimants at a disadvantage?鈥 (2018) 47(4) ILJ 531; and M Connolly, 鈥極bjective Justification, Less Discriminatory Alternatives, and the 鈥淕reat Repeal Bill鈥濃 (2017) 17 (3) IJDL 195.

2 In some ways, article 157 TFEU (鈥榮ingle source of pay鈥) exceeds EA 2010, s 79(9) (allowing equal pay comparisons with 鈥榓ssociated employers鈥. See Case C-43/75 Defrenne v Sabena (No.2), [1976] ICR 547, [40] and South Ayrshire Council v Morton [2002] ICR 956 (CSIH).

3 EU (Withdrawal) Act 2018, s 6(5). This is the Supreme Court's rule for overruling its own decisions: Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 (HL); This practice transferred to the Supreme Court by Constitutional Reform Act 2005, s. 40. See Austin v Southwark London Borough Council [2011] 1 AC 355 (SC) [25]. The Court of Appeal was added by the European Union European (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020 SI 2020/1525, reg 3, and can depart from EU law on the same basis (ibid reg 5). There is a similar provision for Scotland's High Court of Justiciary (EU (Withdrawal) Act 2018, s 6(5)).

4 Although the qualification period to acquire Unfair Dismissal rights was extended from 1 year to 2 years in 2012: 2012 SI 2012/989.

5 The Coalition Government proposed abolishing this, but recanted following consultation. Business was in favour of its retention because of the certainty it gave. See, , p . 8.