Recruiters warned over uncertainty in employment cases post Brexit
Confusion abounds over how European legislation, such as agency worker and working time regulations, can be properly applied if these rules are not fully transposed into UK law to take account of past case law post Brexit, an employment lawyer has warned.
Today, government is due to set out how it plans to remove EU law from the statute book through what it known as the Great Repeal Bill.
The Bill will incorporate thousands of pieces of EU law into UK legislation, including rules around agency workers and working time.
Christopher Tutton, partner at law firm Constantine Law, told Recruiter while the government's White Paper on Brexit explained the UK will no longer be subject to the jurisdiction of the European Court of Justice after Brexit, questions remain over what this will mean for the large body of UK case law used to help guide judges’ decisions that has built up over the past 40 or so years.
“Much of the UK case law relevant for recruiters (working time rules, for example) has been based on an explicit interpretation of European case law and directives,” Tutton explains.
“In practical terms, our membership of the EU has led to UK courts 'reading' (ie. adding) words into our domestic laws to make them fit with EU principles. The Great Repeal Bill may intend to keep existing UK legislation – such as the working time and agency workers regulations – unchanged, but it also needs to deal with the status of previous case law, where words have been 'read in' to legislation to make it fit EU law.
“Unless it does so we could face huge uncertainty about whether past case law, decided while we were in the EU, is still valid. If such case law is not valid, we will undoubtedly face the prospect of post-Brexit litigation, which tries to re-establish legal boundaries.”
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