Brexit and the Implications for Employment Law in the UK

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The UK left the EU on the 31st January 2020 following ratification by the UK and the EU of the Withdrawal Agreement. A transition period then applied until 31st December 2020. During this time for most purposes the UK was treated as if it were still a member of the EU. Therefore, most EU law continued to apply to the UK. It is the European Union (Withdrawal) Act 2018 that ended the supremacy of EU Law in the UK and prepared the legal framework for the UK to withdraw from the EU. The Act meant a conversion of EU law into UK law as it stood at the moment of exit. Meaning that any UK Laws derived from the EU remained applicable. Therefore, this means that any employment legislation derived from the EU remains applicable in the UK, but just on a different constitutional basis.

There is now an end to the principle of the supremacy of EU law to the effect that it no longer applies to any UK enactment or rule of law passed or made on or after 31st December 2020. The supremacy of EU law continues to apply in the UK where there is an inconsistency between an EU directive and UK domestic legislation and the directive was implemented before the end of the transition period, any inconsistency in the law should be resolved in favour of the EU directive.

Regulations have been enacted that have determined that the Court of Appeal in England and Wales are not bound by retained EU case law. This does, however, raise concerns with regard to creating uncertainty in relation to employment law matters. How to interpret retained EU law since the end of the end of the transition period on 31st December 2020 is tricky to determine.

Decisions will now rest with the UK Government as to whether it should retain, amend or repeal the UK employment law that has been derived from the EU. The most likely areas of law to be subject to change are:-

  • The Working Time Directive 1998. The UK has the Working Time Regulations 1998 that govern working time and holidays. There may be an overhaul of the way holiday pay works as this is currently a complicated area due to the effects of several previous European Court of Justice decisions.
  • Agency Worker Rights – This is an area that could see an overhaul as the Agency Worker Regulations 2010 are quite complex and unpopular.
  • The Transfer of Undertakings Protection of Employees Regulations (TUPE) provide the rules for business transfers. These can be difficult to apply in practice.
  • The Equality Act 2010 – this deals with discrimination legislation in relation to workers’ protections. The Government has already indicated that it does not want to reduce the protections as set out in this legislation. However, there may be some changes to discrimination based claims.

As it is early days since Brexit only time will tell as to how exactly this will impact on the future of employment law in the UK. Watch this space …

For all employment law related advice and representation please contact Jennifer Carpenter solicitor and partner.

Joshua Tarrant Trust; Thank You

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Joshua Tarrant Trust Logo

We are pleased to receive this message of thanks from Denise, Co – Founder , of Joshua Tarrant Trust.

Each year our Partners generously donate to 3 local charities, nominated by our staff.

“It was a pleasure to speak to you on the phone a few weeks ago. We are delighted to inform you we have safely received the cheque, generously donated by the Partners in lieu of not sending corporate Christmas cards in 2020. Thank you all so much, we are so pleased to be nominated by your staff and look forward to future engagements with you”.

The Impact Of School Closures On Working Parents

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Lockdown III has resulted in the further closure of schools in the country with effect from 5th January 2021. Schools remain open for children of parents/carers with a job or career deemed to be “critical” in the Government’s guidance; or for some children that are vulnerable; or, most recently added is the category for those students unable to learn from home due to a lack of IT resource. The impact of school closures is huge on working families, in particular working mothers.

What can you do if you cannot work because your child(ren) are not at school?

1. There is no right to request, or to receive, furlough leave. However, the Government has confirmed that the Coronavirus Job Retention Scheme (CJRS), that contributes to the pay for furloughed employees/workers, can be used for caring responsibilities. It is the employer’s decision though. If it is offered by the employer it can only be implemented with the employee/worker’s consent. The employer is not obliged to make up the pay to a full 100% and therefore it means a reduction in pay to 80%. The CJRS has now been extended until the end of April and can be used flexibly so the employee/worker does not have to be on furlough leave for all of their contracted hours.

2. There is a statutory right to Parental Leave – up to 18 weeks leave per child can be taken by some working parents before the child is 18 years old. However, this is unpaid leave.

3. Annual leave can be used but most employers have a limit on the amount of annual leave that can be taken consecutively and it is always subject to the employer’s approval.

4. A change in shift pattern or working arrangement – an employer cannot force you to work on a different day or time. However, if you have caring responsibilities for a child (and you have worked for at least 26 weeks for your employer) you can make a flexible working request to change your contractual hours of work. An employer can only refuse this request for prescribed reasons as set out in section 80G(1)(b) of the Employment Rights Act 1996:

• The burden of additional costs
• Detrimental effect of ability to meet customer demand
• Inability to reorganize work among existing staff
• Inability to recruit additional staff
• Detrimental impact on quality
• Detrimental impact on performance
• Insufficiency of work during the periods the employee proposes to work
• Planned structural changes

5. Termination of Employment – you can resign from your employment. Your employer can only dismiss you if it is for one of five permitted fair reasons as set out under the Employment Rights Act 1996 – incapability, misconduct, redundancy, illegality of some other substantial reason.

Questions have been raised in parliament this month suggesting that there should be a legal and enforceable right for parents to request paid, flexible furlough. This comes after a survey of 50,0000 women in the UK suggested that 71% of working mothers who asked to be furloughed for childcare reasons following the closure of schools this month had their requests refused. However, this change has not been implemented.

The above is a very brief summary of the employment law position arising as a result of school closures. Please seek our specific advice so that it is applicable to your own individual circumstances. Remote appointments by various means are available with our employment law specialist Jennifer Carpenter, solicitor and managing partner.

Please telephone the office on 01799 523441 or e-mail [email protected].

Hayley Ford; New Partner

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Hayley Ford Solicitor Wills Trusts and Probate 400

The partners of Adams Harrison are delighted to announce that Hayley Ford has joined the partnership. Since 1st January Hayley has become a partner in the business.

Hayley has been a solicitor in the private client department at Adams Harrison for over seven years. She obtained a Master’s degree from the University of Cambridge before completing her Graduate Diploma in Law at BPP Law School and the Legal Practice Course at the College of Law, London.

Hayley specialises in preparing Wills and Lasting Powers of Attorney, registering Enduring Powers of Attorney, Court of Protection work and administering estates. Hayley is based in our Saffron Walden office but is available to advise clients at our other offices.

Hayley is a qualified Trust and Estate Practitioner (TEP), holding a diploma in Trusts and Estates and a diploma in Advising Vulnerable Clients (which she passed with a distinction) from the Society of Trust and Estate Practitioners (STEP). TEPs are internationally recognised as experts in their field, with proven qualifications and experience.