By Safeena Rashid, Member, Faculty of Advocates

EVER since the Brexit referendum brought its largely unexpected result, there seem to be more questions than answers, rather like a drama with enticing cliff-hangers. The political state of affairs has yet to fill even the most optimistic person with hope that we will soon have more solutions than problems. Legally, the state of affairs is also one of uncertainty. With the impending deadline for leaving the EU, multiple aspects of our lives have the potential to be affected. Of particular concern to many will be the issue of employment rights. Will people be forced to relinquish rights that they currently enjoy? Is this the opportunity for large corporations to lobby the Government for a more relaxed approach to employment legislation? Will we see a large change in the way employment cases are dealt with by courts and tribunals?

The answer to these questions is: probably not. One may find it difficult to provide a definitive answer because no-one can predict the future. However, the Government has given indications of its intentions. Continuity seems to be the key. Last July, a White Paper was published, setting out the Government’s intentions for managing Brexit and how it envisaged a post-Union UK. In the paper, “committing to high levels of social and employment protections through a non-regression requirement for domestic labour standards” was promised. The paper also stated that existing workers’ rights would continue in UK law on the day of withdrawal.

For anyone concerned about their employment rights, this is a positive sign. The paper could be taken as a strong indication that in respect of this matter at least, the Government wishes to retain the status quo. Ordinary reading of the phrase “non-regression” shows a promise that existing rights are not suddenly going to be removed. Clearly this comes with the caveat that what is outlined is the current Government’s proposal which can obviously be subject to change or review.

As well as non-regression being promised in theory, the legal ability to enforce employment rights in practice will also be retained. Many employment rights are already enshrined in working practices by domestic legislation from Westminster. However, in what looks like a belts and braces approach, the Government passed the European Union (Withdrawal) Act 2018. This contains provisions seeking to preserve all aspects of EU law as they currently are within domestic law when we exit. The legislation seems to intend that the courts and tribunals will continue to decide cases as they currently do, using a combination of domestic and European legal sources. I suspect that even after the UK withdraws, this legislative preservation of EU law will maintain judicial decision making in its current form. Perhaps the most notable change will be that litigants have no recourse to the European Court of Human Rights. However, in 2017 only four UK cases reverted to this level of appeal.

Maybe from this we can rest assured that, in the short term anyway, there will be no radical changes, in fact probably no changes, to employment law.

As for long-term changes, the Government’s vision is unclear. Economic development will no doubt be high on its agenda. Many factors need to be balanced to allow for this, including the interests of both workers and business owners. The legislation and White Paper are a sign that perhaps the Government is taking the view that existing employment rights are not a hindrance to economic development and are worth maintaining. As for how this will pan out in reality, I watch alongside an entire nation with bated breath as the drama of Brexit unfolds.

* The author is writing in a personal capacity.