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27 Mar 2017

How Article 50 could affect UK employment law

Writing recently for the CIPD website, lawyer Amanda Steadman explained how the triggering of Article 50 – and Britain´s subsequent exit from the EU – could affect workers´ rights in the UK.

As Steadman explains, once the Article 50 notification has been issued, Britain will have two years to negotiate its extraction from the EU. During this time, Britain will remain a full EU member; but unless a time extension is agreed, its membership will cease in March 2019.

It is not yet clear whether Britain´s future relationship with the EU will be set out as part of the withdrawal agreement, or after negotiations have taken place. Here are the changes Steadman predicts:

Changes after the triggering of Article 50

  • Britain will still be bound by EU law throughout the two-year exit process. This means there can be no changes to EU-based employment laws, such as agency worker protections or TUPE.
  • Any new EU laws introduced during this time must be complied with, such as the General Data Protection Regulation.
  • Nationals from the EEA will still have the right to live and work in the UK.
  • The government will be able to change purely domestic employment laws, such as unfair dismissal.


Changes after Britain leaves the EU

The potential for change following Brexit depends on the negotiations and Britain´s future relationship with the EU. Remaining in the single market would mean we are still subject to EU law, and if we leave but maintain access to the single market, we would have to comply with large parts of EU law – including employment.

Based on the government´s indications, however, Britain will seek a relationship based on neither of the models – meaning rights currently reinforced by EU law will lose their protected status. As a result:

  • Unless domestic legislation is introduced, EU rights such as equal pay rights would no longer apply.
  • Primary legislation implementing EU law – such as the Equality Act 2010 – will continue to apply. They could only be repealed or amended by deliberate primary legislation, which would take time.
  • Secondary legislation implementing EU law and made under the UK´s European Communities Act 1972 – such as Working Time Regulations, 1998 – would cease to apply.
  • British courts will no longer be required to follow any future decisions from the Court of Justice of the European Union (CJEU), though they could view them as a persuasive force.


Copyright M2 Bespoke 2017

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