Just in case you haven’t seen this from the new White Paper on the Great Repeal Bill (where have you been?), here are a few paragraphs on the intended post-Brexit influence of the European Court of Justice (CJEU) on English employment law:

2.12 The Government has been clear that in leaving the EU we will bring an end to the jurisdiction of the CJEU in the UK. Once we have left the EU, the UK Parliament (and, as appropriate, the devolved legislatures) will be free to pass its own legislation.

2.13 The Great Repeal Bill will not provide any role for the CJEU in the interpretation of that new law, and the Bill will not require the domestic courts to consider the CJEU’s jurisprudence. In that way, the Bill allows the UK to take control of its own laws. We will, of course, continue to honour our international commitments and follow international law.

2.14 However, for as long as EU-derived law remains on the UK statute book, it is essential that there is a common understanding of what that law means. The Government believes that this is best achieved by providing for continuity in how that law is interpreted before and after exit day. To maximise certainty, therefore, the Bill will provide that any question as to the meaning of EU-derived law will be determined in the UK courts by reference to the CJEU’s case law as it exists on the day we leave the EU. Everyone will have been operating on the basis that the law means what the CJEU has already determined it does, and any other starting point would be to change the law. Insofar as case law concerns an aspect of EU law that is not being converted into UK law, that element of the case law will not need to be applied by the UK courts.

2.15 For example, CJEU case law governs the calculation of holiday pay entitlements for UK workers: failure to carry across that case law would be to create uncertainty for workers and employers.  

This has a number of possible consequences:-

  • First, if the UK wishes to shed or amend any part of EU-sourced employment law, it is going to have to do so expressly and cannot just leave it to wither on the vine as no longer relevant;
  • Second, this snuffs out any lingering chance that Brexiting represents a reprieve for employers in the holiday pay cases.
  • Most significantly, the UK Government is going to have to work out what it does want to change in EU-derived employment legislation now that it will have the technical ability to do so. I have been asking that question of seminar audiences for most of the last 12 months on a decreasingly rhetorical basis and have yet to get an answer to it.  It is maybe for that reason that in his Foreword to the White Paper, Secretary of State for Exiting the EU David Davis says carefully that the Great Repeal Bill is “not a vehicle for policy changes” but will just give Government the “necessary power to correct or remove the laws that would otherwise not function properly once we have left the EU”, which in employment terms is basically none of them.  The Government will also be acutely conscious here of the tension between its repeated trumpeting of the merits of “taking back control” of employment law on the one hand and on the other, the twin imperatives of not upsetting either the remaining EU member states or the UK electorate by actually doing anything with it.
  • As we have said before in this blog, pretty much all the most inept employment legislation in the UK is home-grown – that would be a far better place to start than fiddling with former EU law just because you can. But let us try to start the debate – a small prize from employmentlawworldview.com awaits the best printable argument for the amendment of any specified piece of EU-derived employment law received by me by the end of May this year.