Theresa May's letter triggering Article 50 has been
delivered to Brussels this week, and the Government has published
its White Paper on the 'Great Repeal Bill'.
In summary, the intention expressed in the White Paper is that
very little will change – at least in the short term –
after we leave the EU. The proposals in the White Paper that are
relevant to employment law are as follows:
As far as practical and appropriate, EU law will be converted
into UK law from the day we leave. After we have left, the UK will
then be able to decide what to keep, amend or repeal.
All laws that we have made in the UK to implement our EU
obligations – so that includes all EU-derived employment laws
- will be retained when we leave the EU. That's not to say they
will never change, just that it will be the UK's decision to
change them after Brexit, not the EU's.
The EU courts will have no role in interpreting our laws after
we have left the EU. However, any question as to the meaning of
EU-derived law will be determined in the UK courts by reference to
EU case law as it exists on the day we leave the EU. Such historic
EU case law will be given the same status in our courts as
decisions of the Supreme Court (formerly the House of Lords). This
approach is intended to maximise legal certainty at the point of
departure, but not fossilise the past decisions of the EU forever.
It is very rare for the Supreme Court to depart from one of its own
decisions; it will do so only in exceptional circumstances
'when it appears right to do so' and the Government expects
the Supreme Court to take a similar, sparing approach to departing
from relevant historic EU case law. The Government reiterates
though that Parliament will be free to change the law, and
therefore overturn case law, where it decides it is right to do so.
At the moment, Parliament cannot do this in respect of EU-derived
Where a conflict arises between EU-derived law and new laws
passed by Parliament after Brexit, the newer laws will take
Comment – issues
There are three issues with these proposals that spring to
First, there is always the possibility that they will change
during the Bill's passage through Parliament.
Secondly, they may also change as a result of the UK's
negotiations with the other EU Member States and any concessions
that the UK may make during the negotiation process.
Thirdly, if the rights of EU citizens living in the UK are
fully preserved, which currently appears to be an objective of both
sides, it is difficult to see how the role of the EU courts could
be excluded as regards those citizens; they may still have EU
rights and the UK courts may have to implement them in accordance
with the EU courts' decisions.
Our expectation is that despite various statements made by
politicians on both sides, the reform of existing employment
legislation will be a hot topic during the next two years of
negotiating the UK's exit from the EU, and beyond. The bill
itself will be included in the next Queen's Speech and will
then have to pass through both Houses of Parliament. The current
plan is for it to be passed ahead of the UK's exit from the EU
but to become law only when the UK actually leaves. We will be
closely watching the progress of the bill once it is presented to
Parliament, and will provide further commentary when it passes
significant milestones or is amended in any meaningful ways.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The Court of Appeal has held that where a contract of employment lacks a provision for when notice of termination takes effect, it is effective from when the employee personally takes delivery of the letter containing notice.
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