Britain and Brexit: A forecast of the future of employment protection during corporate insolvency

Abstract

Brexit has produced a lot of uncertainties in the UK, not the least of which are the future of protections that have been derived from EU social policy Directives. Arguably, the UK's membership in the EU has pushed it further into a socially liberal and protective framework that it might not have adopted had it remained outside of the EU's sphere of influence. The question now is what direction the UK will take with regard to both the rescue culture and the social protections, both of which have been highly influenced by EU law and policy. The UK has ever been the "odd man out" in the EU, springing as it does from a significantly different legal origin than the Franco/German model at the heart of the EU. Examining the developmental path of other common law jurisdictions (America, Canada, and Australia) whose legal systems are derived from the British may be instructive in relation to the direction the UK might have taken had it not joined the EU, with a particular focus on the employment protections derived from the EU which are often applicable during insolvency and rescue procedures. An analysis of this counterfactual position may then also provide a clue or forecast as to the direction that the UK may take following Brexit.

The normative and Jural meanings of the anti‐deprivation principle vis‐à‐vis freedom of contract

“…Despite suggestions that the market should be seen "as an engine, not an enemy, of social as well as economic progress", 139 the adoption of consumer-welfarist views 140 has resulted in additional legislation 141 and case law 142 that qualifies such freedom in an attempt to better protect vulnerable players such as employees 143…”