The Employment Lawyers Association (ELA) has expressed concern that tribunals may depart from retained EU law, leading to uncertainty and greater likelihood of litigation.
One of the provisions of the Withdrawal Agreement Act 2020 is that lower courts and tribunals may be permitted depart from ‘retained EU law’ – something until now reserved only for the Supreme Court or the Scottish High Court of Justiciary.
‘Retained EU law” is the snapshot of EU law that will be taken at the end of the Brexit transition period on 31 December 2020). It would include rights in EU Directives previously interpreted by a UK or European Court. Some of this is part of UK legislation, but there is a great deal of UK and EU case law that is applied by employment tribunals when interpreting UK legislation (for example discrimination law)
The Employment Lawyers Association (ELA) is concerned that uncertainty will not be good for both parties, because when it is not known how a particular issue will be decided disputes are harder to avoid or to settle. It would mean parties are therefore more likely to litigate, placing further pressure on an already stretched Tribunal Service.
The ELA is urging the government to restrict the courts and tribunals able to depart from retained EU law and to implement any changes considered necessary by legislation.
