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The Impact of Brexit on Employment Law in Scotland

Document Cited authorities 4 Cited in Related
Vincent
Date01 January 2018
Pages160-165
Published date01 January 2018
DOI10.3366/elr.2018.0469
INTRODUCTION

In the run-up to the “Brexit” referendum, workers’ rights were invoked repeatedly by both sides of the campaign as either a reason to back or oppose a British exit from the European Union (“EU”). Following the referendum, the debate over workers’ rights and their continuing protection once the UK leaves the EU, has been reignited. The Scottish Government has expressed particular concern about Brexit's potential impact on social rights, including the rights of workers,1 and is considering how Scotland can maintain protection of EU-derived rights in this area once the UK leaves the EU.2 What then is Brexit's potential impact on employment law in Scotland?

 THE DEVOLUTION SETTLEMENT

Employment and industrial relations, health and safety, and most aspects of equal opportunities are reserved matters under Schedule 5 Part 2, Head H to the Scotland Act 1998. Although the Scotland Act 2016 gave the Scottish Parliament greater powers in the field of equal opportunities3 and devolved employment tribunals,4 the key European rights are implemented almost exclusively through UK legal sources. While there are some minor differences between the employment laws applicable in Scotland and England – including common law rules on the formation of contract,5 the treatment of third party rights6 and rules on prescription/limitation7 – these do not touch upon areas impacted by EU-derived employment laws.

 THE EU'S INFLUENCE ON UK EMPLOYMENT LAW

Apart from the provisions in the Treaty on the Functioning of the European Union (“TFEU”)8 which enable the EU institutions to act in order to facilitate the free movement of workers,9 the EU has limited competence to legislate in employment matters. Any attempts which have been made to introduce a comprehensive European labour law – largely under the banner of a so-called European Social Model – have therefore been dependent on the effective accommodation of political interests.10 Nonetheless, legislation adopted under the European Social Model has bestowed a number of individual – including substantial equality and health and safety rights – and collective employment rights on workers in the UK and has led to the establishment of a floor of social rights which limits the UK Government's legislative capabilities. In addition, EU law provides guarantees for the protection and enforcement of employment rights,11 and the Court of Justice of the European Union (“CJEU”) has used the general principles of EU law to progressively widen the scope of protections and rights granted to workers under EU law.12 The CJEU's case law can be contrasted with the approach of UK courts which have tended to interpret employment rights narrowly.13

Overall, therefore, EU-derived employment laws cover a patchwork of rights in the UK. Although it is...

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