Brexit, the transitional period and employment rights

Thanks to the ratification of the EU Withdrawal Agreement, we are now starting the 11 month transitional period, during which the UK remains subject to EU law without being a member state. What is that likely to mean for UK employment law?

Although there are no employment directives due to be implemented by EU member states this year, we still have almost a year’s worth of employment case law from the European Court of Justice to come. Thanks to the UK’s Brexit legislation, these additional decisions will still influence how our courts interpret our existing EU-derived domestic law once the transitional period ends.

From that point onwards, the UK will in theory be free to diverge from EU law. How quickly any such divergence is likely to happen in practice is hard to predict, and will depend in part on the trade deal the UK negotiates with the EU. There is nothing in the Withdrawal Agreement itself that has any direct impact on employment law, but there are a few sentences in the non-binding political declaration that commit both the UK and the EU to maintaining “high standards” of employment rights.

The Government has said that it is not planning to water down workers’ rights, though some procedural safeguards against “regression” (see here for more details), which were in an earlier version of the Withdrawal Agreement Bill, were removed from the version that passed into law last month. Boris Johnson has also made it clear in his first major post-Brexit speech that the UK will not be entering into a binding commitment to “accept” EU standards in this area and a number of others. Quite what trade deal we will end up with from that starting point is hard to predict, since the continued alignment of UK employment law with the EU’s minimum standards is just one of many issues to be considered in the negotiations on the future UK/EU relationship, which are due to start next month.