What is the impact of Brexit on employment law?
Although much UK employment law is derived from EU law, the UK's withdrawal from the EU is unlikely in itself to have an immediate impact on employment law. At the end of the Brexit transition period on 31 December 2020, existing EU law was converted into domestic UK law. Most EU Directives are already implemented in the UK by regulations or Acts of Parliament; for example, the EU equality Directives are implemented by the Equality Act 2010. It will be for Parliament to decide whether to retain, amend or repeal domestic legislation.
Commentators have identified the harmonisation of contracts after a TUPE transfer; the calculation of holiday pay; agency workers' rights; and the introduction of a cap on compensation in discrimination claims as examples of areas, currently governed by EU law, where changes could be made in the future by a Government looking to roll back employment regulation.
Many areas of domestic law that are derived from EU law have been heavily influenced by decisions of the European Court of Justice (ECJ), for example working time, TUPE and discrimination law. Under the European Union (Withdrawal) Act 2018, UK courts are not bound by decisions of the ECJ made after the end of the transition period on 31 December 2020. The UK Supreme Court, the Court of Appeal of England and Wales, the Court of Appeal of Northern Ireland and the Inner House of the Court of Session in Scotland will be bound by ECJ decisions made before the end of the transition period (retained ECJ case law) to the same extent as the Supreme Court is bound by its own case law. These courts can therefore depart from retained ECJ case law only in limited circumstances, where it appears "right to do so".