Policy Papers

ELA publishes occasional policy papers to assist in the understanding of employment law and its effect on people and businesses. We set out our current policy papers below.

The law is constantly changing and so the position set out in papers published here may not be current and you should not rely on the papers as a comprehensive statement of the law but should always seek advice if you require it from a qualified lawyer.

ELA responses to consultations are also publicly available here


Brexit - Court of Justice of the European Union (‘CJEU’): View of employment lawyers

February 2019

Summary

  • The CJEU currently performs two clear roles – it is the arbiter of disputes brought by or against the UK Government and, more importantly in this context, it provides guidance on the application of EU law to domestic courts and tribunals who seek such guidance.
  • After the UK leaves the EU, UK courts may have regard to CJEU case law but will not be bound by it.
  • ELA has concerns particularly about cases in train at Brexit date, as well as concerns about how courts and tribunals will interpret/rely upon CJEU case law after the UK exits the EU. 
  • In addition, ELA has a number of concerns about the practicalities of implementing the Government’s current proposal to ensure that UK ‘workers rights’ keep pace with those of EU workers. 
  • Without the government accepting and introducing legislation that makes it clear that, at least in relation to ‘workers rights’ (which will need to be defined), the UK will be bound by CJEU case law, the Government will not be able to ensure UK ‘workers rights’ keep pace with those of EU workers.
  • There is a real prospect of divergence between UK law and EU law, and of a weakening of the application of CJEU jurisprudence, leading to a diminution of workers’ rights. 
     

Sexual Harassment & Employment Law

July 2018

Summary

This paper is intended to provide information and insight to those considering potential change to employment laws and practices related to workplace sexual harassment.  The paper offers some commentary on current laws and their impact, in practice, on victims, perpetrators and employers.  It is further informed by a limited survey of ELA members completed on 20 July 2018, to which 464 ELA members responded (8% of those included in the survey).  Please note that this paper is not intended to provide a comprehensive overview or review of sexual harassment law, but simply to contribute to current debate (as at the date of this paper).

There are a number of reviews, initiatives and bodies currently focused on sexual harassment at work including, for example, the Parliamentary Women & Equalities

Committee inquiry into sexual harassment in the workplace, the Law Society, the Solicitors Regulatory Authority (‘SRA’), the Equality and Human Rights Commission (‘EHRC’) and the Advisory Conciliation and Arbitration Service (‘ACAS’).    This paper is intended to complement and assist those bodies and reviews, and there is naturally some overlap between the content of various reports and contributions and this paper.  In particular, the paper submitted by employment and partnership lawyers, CM Murray LLP, to the Women & Equalities Committee inquiry offers some helpful perspectives on employment law and sexual harassment.  As discussion develops we anticipate that this ELA paper may need to be updated and/or replaced.

It should be noted that whilst ELA members have, in many respects, differing views, responses to ELA’s Survey from claimant and respondent-focused lawyers were markedly consistent in many areas.

ELA’s responses on Sexual Harassment in the Workplace