Brexit: Gold Plating, Court decisions & European Convention on Human Rights

Brexit: Gold Plating, Court decisions and the European Convention on Human Rights

The dust is finally beginning to settle following the EU referendum (at least for the UK voters, if not for the major political parties). Employment law will face unprecedented change in the coming years and I am going to focus on three legal issues which have, so far, not hit the headlines, explaining how they fit into the process of exiting the EU.

Gold Plating

This is a term which we will be hearing a lot about over the next few months and years, particularly in relation to employment law. Essentially, it describes the situation where an EU directive has been given extra strength when incorporated into domestic law because the UK government has gone beyond the original policy goals of the EU law. The reason that this is so important now is that it is very unlikely that we will see the rights provided to employees in this context being withdrawn or diminished. Whilst some employment law brought in through EU legislation may face this fate (e.g. working more than 48 hours requiring an opt-out), a government may struggle to find support in pulling back additional rights the UK itself has conferred upon its workers.

A good example of gold plating is contained within the Working Time Regulations 1998. The EU Directive provided workers with a right to a minimum of 4 weeks’ holiday per year. The UK went further when implementing this, increasing it to 5.6 weeks.

What will be the status of decisions of the Court of Justice of the European Union?

The Court of Justice of the European Union (CJEU) (formerly the ECJ) has long shaped the legal system of our country, particularly in reference to the development of employment law. At present, the decisions are still “good law” and may continue to be so following an exit, depending on how the European Communities Act 1972 is repealed. However, the UK Courts and Tribunals, following an actual final exit, will no longer be entitled or obliged to refer matters to the CJEU. There will be a period of uncertainty to follow should the UK not be bound by these decisions. The recent Employment Appeal Tribunal decision of Lock v British Gas Trading Ltd Holiday pay is an excellent example. Here, the relationship between holiday pay and commission for workers where commission was part of their regular pay was referred for clarification.

We are still very much a member of the Council of Europe (and have been since 1949)

Although a common misconception, the Council of Europe is a separate international institution to the European Union. By way of illustration, members include Russia and Turkey. Although the EU introduced the Charter of Fundamental Rights of the EU following Lisbon, it is by virtue of our membership of the Council of Europe that the vast majority of rights for employees exists. Membership of the Council of Europe is what lead us to enact the Human Rights Act 1998. This text of the European Convention on Human Rights (ECHR) is, arguably, the linchpin of modern employment law. The Human Rights Act states that in so far as possible UK law should be interpreted and given effect to in a way which is compatible with the ECHR. Contained within the ECHR is: the prohibition of slavery and forced labour; the freedom of thought, conscience and religion; the prohibition of discrimination; the right to a fair trial and; the freedom of assembly and association.

The vote on 23 June was in reference to membership of the E.U., not the Council of Europe. A further political decision needs to be taken on whether to leave those rights behind. The European Court of Human Rights has often provided decisions which have led to both progression and controversy – Bărbulescu v Romania at the beginning of the year confirmed that employers were, in some circumstances, entitled to monitor their employees’ personal communication in the workplace.

If you have any questions relating to the above, or on any other employment law matter, and how it affects your business, please contact us on 01463 239393.

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