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Brexit and Employment – a new Border?

February 01, 2020

As the UK take its next big step on its Brexit journey – formally leaving the EU on 31st January, 2020 – it may be prudent to consider if there may be any impacts on the field of employment generally, and more specifically in the formal exercise of employee relations through the legal and industrial relations frameworks which govern how, as employers, we interact with our employees.

An interesting aspect to the departure of the UK from the EU is that Ireland will be left as the only fully “common law” jurisdiction in the Union, with the remaining other 26 states using the Civil Law legal framework. Without trying to oversimplify what is a quite complex area (that is why we have so many lawyers) we can summarise the two systems as below:

Common law systems, while they often have statutes, rely more on precedent, judicial decisions that have already been made.  Common law systems are adversarial, rather than investigatory, with the judge moderating between two opposing parties.  The legal system in Ireland, England and Wales is a common law system. Interestingly, Scotland, due to historical and political reasons has its own unique system based on Roman and continental law, with common law elements dating back to the High Middle Ages.

Civil law systems have their origin in the Roman legal tradition.  Civil systems vary widely, both in procedure and substantive law, but they do have some trademark characteristics.  Nations with civil law systems have comprehensive, frequently updated legal codes.  Most importantly, case law is a secondary source in these jurisdictions.  France and Germany are two examples of countries with a civil law system.

There are other systems around as well such as those where law and its exercise is based on religious foundations such as Islamic Sharia law, used in Saudi Arabia for example.
So, why is this, or might this be important for employers. Well three initial reasons come to mind.

Firstly, in an overall perspective as we remain in the EU and the UK leaves it will be interesting to see if from a political point of view that Ireland is expected (read, pressured) to be fully or more supportive of proposals to strengthen workers rights. Historically we might have been seen as being aligned more with the UK’s typically more “sceptical” approach to EU proposals related to the employment field. Now, without our near neighbour, and given that other states may feel that Ireland “owes” the EU for all the political support we received during the Brexit process se may be expected to be more positive in supporting future EU proposals.

Secondly, on a more pragmatic level, how much divergence starts to happen in terms of current as well as future employment related law. For example, will the UK decide to review the range of EU based provisions that have been put in place over many years e.g. TUPE, Posted Workers Directives, etc. Some off the comments coming out of the UK very recently have suggested that the UK government plans to diverge actively from the EU in terms of trade, tariffs, etc. There have been statements from some UK ministers suggesting that they want to maintain the high level of workers rights supported by various EU Directives, but time will tell.

Thirdly, as mentioned before we share our overall legal structure (Common Law) with the UK in general, and England and Wales in particular. As various cases begin to work their way through the courts it will be interesting to see how the interplay between the interpretation of historical precedent versus the applicability of EU based law plays out.

So, for employers, nothing immediate to be concerned with, but certainly an are to keep an eye ion for the future.