Brexit and Worker Rights

Michael Ford - 24th May 2016

It is now pretty well-known that most of the employment rights in the UK are guaranteed by EU law—the principal exceptions being unfair dismissal and the national minimum wages—as I explained in a recent advice for the TUC. UK legislation on race discrimination, sex discrimination, equal pay and disability discrimination may have pre-dated EU legislation, but EU law led to protection against other forms of discrimination, such as age. In addition, over the years, it has greatly supplemented or overwritten the domestic regime, almost always in favour of workers – uncapped damages, pregnancy discrimination, the burden of proof in discrimination, equal value claims, protection against harassment, post-employment victimisation and so on.

The EU-guaranteed rights include almost all the working time rules, including paid annual leave; the protection of agency, fixed-term and part-time workers; rights on the transfers of an undertaking (extremely significant in a world dominated by out-sourcing); many rights to information and collective consultation; the most important health and safety regulations; the right to a written statement of terms of employment; protections derived from the EU Insolvency Directive, which led to important extensions to the state guarantee of pension benefits and protection of other claims where the employer is insolvent; and EU data protection law, the driving force behind the Information Commissioner’s Employment Practices Code. Though the EU Charter of Fundamental Rights has thus far not had the radical effect some anticipated, the EU principles of effectiveness and equivalence remain very important constraints on recent Governments’ drive for a ‘flexible’ labour market—effectively blocking, for example, capped damages for discrimination, as the last Government conceded in its Employment Law Review.

The more difficult question is which rights are vulnerable in the event of Brexit, as lively debates on Twitter attest. None of the rights is in the sights of the Labour Party: on the contrary, a central theme in its resistance to Brexit is a fear of a ‘bonfire’ of workers’ rights. Some of the targets of a future Conservative administration, no doubt dominated by a reinvigorated right of the party, can be gleaned from existing policy documents and public statements. Capping damages for discrimination is an obvious target, already signalled by the last Government and in keeping with legislation which it introduced restricting damages for unpaid wages and unfair dismissal and removing civil liability for breach of health and safety regulations. The neo-liberal ideology remains as influential as ever, illustrated by the recent report of Policy Exchange, the unacknowledged driving force behind the Trade Union Act 2016.

Recent declarations by Michael Gove and Boris Johnson that EU regulations cost the UK £600 million a week were based on a report issued by the Open Europe think-tank. High on the Open Europe ‘top 100’ hit list were those perennial subjects of right-wing vitriol, working time rules (said to cost the UK £4 billion a year – with an annual benefit of zero) and the agency worker regulations (annual cost estimated at about £500 million a year: what is it about agency workers that the Conservatives hate so much?). Other targets were parental and maternity leave regulations (a snitch at £60 million a year), changes to harassment flowing from EU law (£180 million), along with various health and safety regulations (e.g. control of asbestos regulations costing £23 million a year, with an estimated benefit of….zero). A similar group, Economists for Britain, identified removing gender equality and working time rights, along with changes to health and safety rules, as some of the main benefits of Brexit. Meanwhile the Tory MP, Christopher Chope, introduced a Bill in Parliament which would, in essence, remove working time rights from any employee who ‘agreed’ to it (adding, for the avoidance of doubt, that there should be no rights to annual leave or pay in respect of it).

The logic of the Brexiteers’ position, though they are reluctant to admit it in public, is that labour market deregulation is one of the principal benefits of leaving the EU. Take away EU rules on effective remedies and sanctions, and the sky (or floor) is the limit.

Editorial Note: This is the latest post in the OxHRH Blog’s special series which examines the impact that Brexit could have on workers’ rights in the UK.

Author profile

Michael Ford QC is a Professor of Law at the University of Bristol, a QC at Old Square Chambers and a fee-paid Employment Judge. His principal areas of research and practice are labour law, EU law and human rights, on which he has written widely. He is on the EHRC ‘A’ panel of specialist counsel and was Employment Silk of the Year in 2015. He recently advised the TUC on the implications of Brexit for workers’ rights. His real interest in life is cycling (e.g. 4th Tour of the Peak, 5th Ronde de L’Oise).

Citations

Michael Ford, “Brexit and Worker Rights”, (OxHRH Blog,  May 2016), <http://ohrh.law.ox.ac.uk/brexit-and-worker-rights/>, [Date of access].

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