Theresa May’s speech to the Conservative conference may reassure some in the employment sphere that employment protection will not be eroded following Brexit. But is it still far from clear how the government will deal with workers’ rights when we leave the EU.

In her speech last week, Mrs May stated “Existing workers’ legal rights will continue to be guaranteed in law – and they will be guaranteed as long as I am prime minister… We’re going to see workers’ rights not eroded, and not just protected, but enhanced under this government.” She did not, however, elaborate as to how it is intended to enhance employment protection. Mrs May confirmed that the intention is to repeal the European Communities Act 1972 but to convert the body of existing EU law into British law (which can then be repealed, amended or improved in due course).

The position seems to have changed since last month when, following a question in the House of Commons, the government failed to guarantee that all employment rights protection within the UK will be maintained following Brexit. The Business Secretary, Margot James, stated that “Employment protections are an absolute priority for this Government “ but declined to give any further assurances. A private members bill has now been proposed (the Workers’ Rights (Maintenance of EU Standards) Bill) which seeks to ensure that existing employment rights are maintained.

We will now have to wait and see what actually happens in practice.

Much of EU law is now deeply entrenched into our domestic law (discrimination law and TUPE being prime examples) and it appears from Mrs May’s speech that there is currently no intention to repeal all European based legislation, although commentators think that some of the more recent and more unpopular legislation (for example the Agency Workers Regulations 2010) may be in danger. In particular it will be interesting to see how case law developed by the European Courts will be dealt with once we are no longer part of the EU. For example, the complex area of law involving holiday pay and sickness absence could finally be resolved giving employers some much hoped for certainty.

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