Post-Brexit, existing and future case law of the Court of Justice of the European Union (CJEU) may be regarded by the courts as having only persuasive force, according to a House of Commons library paper.
Brexit—impact across policy areas , published last week, explores the current position of the UK and EU and what changes may result from Brexit.
On employment, it notes that an “inevitable consequence” of domestic courts no longer being bound to follow CJEU case law would be the re-litigation of settled principle, such as “whether holiday pay needs to take account of non-guaranteed overtime and commission payments”. One potential way to prevent this would be to be to bring forward transitional legislation to “freeze in place principles derived from case law”.
While a post-Brexit government could seek to amend or remove employment rights, its ability to do so would be subject to the provisions of the withdrawal arrangements or subsequent trade agreement. Its mechanism for achieving change would depend on the right in question. Employment rights located in secondary legislation could be revoked by secondary legislation.
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