Solidarity Not Separation: The Case for Continued Interaction Between UK and EU employment rights – an attempt to sum up

by | Jun 16, 2016

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About Mark Freedland

Mark Freedland QC (Hon), FBA, is Emeritus Professor of Employment Law in the University of Oxford, and an Emeritus Research Fellow of St John’s College Oxford. He is also an Honorary Professor in the Faculty of Laws of University College London. He has written extensively on British labour legislation and public policy, and on the law of the contract of employment: he recently acted as the General Editor of the treatise on the Contract of Employment which was written by a team of twenty authors and published by Oxford University Press in May 2016 —


Mark Freedland “Solidarity Not Separation: The Case for Continued Interaction Between UK and EU employment rights – an attempt to sum up” (OxHRH Blog, 16 June 2016) <> [Date of Access]

I have consciously and deliberately picked up on and generalized the title of Professor Fredman’s initial contribution to this series because that title cannot in my view be bettered as a slogan for the series as a whole.  It puts its finger upon the essence of the case which all of the succeeding pieces more or less strongly make for the UK to remain in the European Union so that the dialogue between member state legal regimes and the EU legal regime will continue to involve the UK so far as employment rights are concerned.  My ‘summing-up’ represents an attempt to face up to and address a certain degree of reservation which is evident in some at least of the subsequent contributions.

The contributors are, it is safe to say, all concerned to maintain and strengthen as far as possible the bulwarks and defences of employment rights in the UK as within Europe at large, and are all prepared to conclude that for the UK to remain within the EU is on balance probably the best way to do so, at least so far as the UK itself is concerned, a qualification which Professor Countouris touches upon.  They are all worried about various forms of and possibilities for neo-liberal de-regulation or further de-regulation of labour markets and the corresponding erosions of or failures to maintain and develop employment rights. Professor Ford is the most straightforwardly clear that EU law is such a bulwark with regard to the general panoply of primarily individual employment rights (a view which I share).  Professor Bogg is content so to conclude with regard to the Working Time Directive in particular.

Professor Novitz has more of a struggle with herself in so concluding, and it is no accident that these relatively acute reservations emerge with special regard to collective labour rights.  This perhaps provides the key to understanding, and hopefully doing something to resolve, the tension which attends this debate.  The fear, of course, is of certain neo-liberal tendencies and possibilities within EU employment law itself.  Thankfully in my opinion, these contributors do not subscribe to the intransigent view sometimes encountered on the radical left of British and European politics that the EU in its present and predecessor forms represents an irredeemably free-market project from the outset which remorselessly re-asserts itself as such after occasional episodes of ‘Social Europe’ remission.  Such a view casually tosses aside many important achievements of the EU, not least its Charter of Fundamental Rights.

From the more balanced perspective which informs this series of contributions, one can admit that EU labour law sometimes undergoes alarming lurches in the neo-liberal direction, most conspicuously in recent times in the jurisprudence of the CJEU concerning collective labour rights.  For me that admission, although difficult, is not in the end too dangerous because I am of the view that one could not realistically expect it to be altogether otherwise in the current political, social, and economic environment within which European employment rights are fashioned.  Misgivings about the neo-liberal swings and potential of EU employment law seem to me to be overwhelmingly out-weighed by the possibilities for potent combinations of neo-liberalism and nationalism within various Member States which might well be reinforced if any of them or many of them were to come out of the European Union, by no means least the UK itself.

Thus, the demand for a re-assertion of national ‘sovereignty’, ‘control’ and freedom of choice which permeates the rhetoric of the Brexit campaign speaks from and to a kind of national individualism and self-regardingness which mirrors the neo-liberal politics and economics of individual self-interest of many of its proponents.  It seems to me entirely fanciful to expect that any freedoms or resources, which were released for national exercise or use by a withdrawal from the European Union, would be deployed by these proponents, themselves most probably projected into power by a vote in favour of Brexit, towards the revival of a welfarist or egalitarian state, or the strengthening or even the preservation of presently-enjoyed employment rights within the state.  I believe that the foregoing contributions to this Series of blog postings display an understanding of this disturbing prospect, and I would characterise them and put them forward as a significant cumulative argument for the maintaining of the present key institutions of European solidarity in this particular sphere of governance. It is, after all, one of those moments at which we are reminded how closely social justice and peace between nations walk hand in hand.

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