Recently proposed amendments to the EU Withdrawal Bill impacting established caselaw are likely to create substantial, and long-lasting, uncertainty for UK workplaces.
Uncertainty can create problems for employers and employees in a number of ways.
For example, uncertain employment laws typically:
- make it harder for employers to comply;
- increase the costs of employment law advice for employers and employees dealing with day-to-day workplace issues;
- make it harder for ordinary employees to understand their employment rights;
- make it harder for both employees and employers to resolve disputes together informally or through more formal ‘settlement' of claims;
- increase pressure on our Courts and Employment Tribunals (waiting lists for some employment claims are already over a year).
Essentially, current proposals for amendment to the Bill will allow substantial departure from established employment decisions by allowing individual lower courts and tribunals to depart from precedents based on EU law. This is likely to impact Employment Tribunal decisions particularly, as many UK employment laws interact with EU law - for example our employment laws relating to holidays, large-scale redundancies quality etc.
Employers repeatedly ask for certainty, and employees need it, particularly those with limited financial resource. Changes to the Withdrawal Bill that reduce predictability of outcomes are, in the round, unlikely to benefit either employers or employees. It would be more helpful, practically, if changes to current employment laws were introduced by legislation in the ordinary way (as proposed in the 2019 version of the Bill). This would allow for proper consideration of practical implications before adoption of Parliament's preferred changes, and reasonable timescales for implementation.
Giving increased discretion to Employment Tribunals to depart from substantial parts of our existing case law would create significant uncertainty, with all the potential disadvantages highlighted above.
Employment Lawyers Association (ELA) members include over 6,000 qualified employment lawyers, including those acting for employers, employees and trade unions.
Juliet Carp, Chair, Employment Lawyers Association (ELA)
Paul McFarlane, Chair of ELA Legislative & Policy Committee
Louise Taft, Co-chair of ELA Brexit Working Party