What happens to employment law after Article 50 is triggered?
Workers’ rights could be affected during and after the Brexit process
Once the Article 50 notification is issued, Britain has a two-year window to negotiate the terms of its withdrawal from the EU. Unless an extension of time is agreed, Britain will cease to be a member of the EU at the end of this period.
The withdrawal agreement is likely to address a range of issues, including the future status of EU citizens in the UK. It may also set out a framework for Britain’s future relationship with the EU. However, the full details of the future relationship will probably be dealt with in a separate agreement. It is not clear whether these negotiations will be conducted in parallel to the exit negotiations, or begin after we have left the EU.
A separate ‘transitional agreement’ may also be needed to govern our relationship with the EU in the period between leaving and any future relationship agreement coming into force.
Changes to employment law after the Article 50 notification is given
Throughout the two-year exit process, Britain will remain a full member of the EU. This means that:
we will continue to be fully bound by EU law, meaning there can be no changes to British employment laws derived from EU law, such as TUPE or agency worker protections;
we will still have to comply with new EU laws introduced within this period. For example, in the employment sphere, British employers must comply with the General Data Protection Regulation by no later than May 2018; and
nationals from the European Economic Area (ie the other 27 EU countries plus Iceland, Liechtenstein and Norway) will continue to have the right to live and work in Britain.
It would, of course, remain open to the government to make changes to purely domestic employment laws, such as the right not to be unfairly dismissed.
Changes to employment law after Britain has left the EU
The degree to which employment law could change following Brexit will depend on the nature of our future relationship with the EU.
If we remain members of the single market (like Norway), we would remain subject to EU law. If we do not remain members but instead seek a high level of access to the single market (like Switzerland), we would have to comply with EU law extending to the single market, including large parts of employment law.
The indications given by the government so far suggest that neither of these models are acceptable. What seems likely is that we will seek a relationship with the EU where we are no longer obliged to comply with EU law.
