Introduction
This guide is intended as a brief outline of employment law in England & Wales. Much of the relevant legislation also applies in Scotland. Northern Ireland has a separate statutory code although much of its employment law is coordinated with that of England, Wales and Scotland. This guide is therefore not to be used as authority for the law in Scotland or Northern Ireland. Provided they are prepared to pay sufficient compensation, employers in England & Wales can usually achieve what they wish. In any event, most businesses are conscientious about wanting to be seen as “good employers”.
Legal framework
Employment law in the United Kingdom is derived from three main sources:
- Common law (custom and practice and court decisions)
- UK employment legislation which has supplemented the common law rules
- Retained EU Law
Across the UK, the majority of disputes between employers and employees are heard by employment tribunals, and not within the civil courts structure. The tribunal, established in the 1970s, has its own set of rules and regulations and is entirely separate from the civil courts. If a party wishes to appeal a tribunal judgment, they may do so to the Employment Appeals Tribunal. Subsequent appeals are made to the Court of Appeal and the Supreme Court.
The UK left the EU on 31 January 2020. UK workplace law did not change as a result of leaving the EU because, as part of the Brexit arrangements, most EU law in force in the UK on 31 December 2020 was preserved as EU retained law. On 29 June 2023, the Retained EU Law (Revocation and Reform) Act 2023 was passed, making provision for significant changes to the status, operation and content of retained EU law (now known as assimilated law). The Act ensures that specified pieces of retained EU law will be repealed at the end of 2023, but this does not include any key employment laws. However, from January 2024 the Act will bring an end to the supremacy of EU law, abolish directly effective rights and remove EU interpretative principles from UK law. As a result, the Act will have a significant effect on UK employment law by changing the way that EU-derived law (such as the Transfer of Undertakings Regulations (TUPE) and the Working Time Regulations) is interpreted in the UK. In addition, the Act will undermine existing case law by creating doubt about the scope, meaning and application of key EU-derived employment rights. This will create uncertainty for UK businesses and could lead to more claims. Nevertheless, the UK government has powers under the Act to re-state or amend certain legislation derived from EU law, and to pass regulations to codify any principles of interpretation or case law that it considers desirable to retain in domestic law. Some minor post Brexit changes have already been proposed in the government’s recent “Smarter Regulation” (see below). But there are still many EU derived laws which will be uncertain unless the government takes steps to make further changes. One practical example is the “rolling 90 day period” for collective redundancy consultation purposes (as ruled by the European Court in UQ v Marclean in December 2020) which is directly at odds with the Trade Union and Labour Relations (Consolidation) Act 1992.
