ERIS Referendum Briefing #7 – The Impact of Brexit on Workers’ Rights and Protections

Saying ‘Yes’ to a Social Europe

The TUC has published advice it has received from Michael Ford QC, on the impact of Brexit on workers’ rights in the UK. It suggests many of the laws and regulations now giving workers protection and rights face the strong possibility of being repealed if Britain votes to leave the European Union in June’s referendum. The document makes depressing reading and on its own makes a strong case for trade unionists and workers generally to vote to remain in the EU.

Michael Ford says that any decision of the UK to leave the EU following the forthcoming referendum will potentially have very significant implications for workers’ rights. He says in broad terms, and subject to the specific terms of any future trading relationship between the UK and the EU providing otherwise, a future government would have a pretty much unconstrained freedom of action in relation to those areas governed by EU social law relevant to employment.

He points out that some areas, such as pay and dismissal, are excluded from the scope of EU social law and are therefore already largely within the domain of national law. The principal areas of rights at work on which EU law has had and continues to have a very significant effect include:

• Discrimination of all kinds, (i.e direct and indirect sex discrimination, including unequal pay, race, age, sexual orientation, gender re-assignment, religion and belief and disability discrimination), are all now protected under the Equality Act 2010, at all stages of employment, including selection for employment, pay and working conditions, dismissal and treatment post-employment;
• Protection of pregnant workers, and rights to maternity and parental leave;
• Protection of part-time and fixed-term workers;
• Protection of agency workers;
• Important rights relating to working time, including rights to daily and weekly rest, maximum weekly working time, paid annual leave and measures to protect night workers;
• Legal rights to collective information and consultation which operate now across a broad range of contexts, including collective redundancies, transfers of undertakings, health and safety, and in all undertakings above a certain size;
• Protection of workers’ rights in the event of a transfer of undertakings, especially relevant to contracting out exercises;
• Many important regulations on health and safety at work, covering issues such as a general duty to ensure workers’ health and safety “in every aspect related to work” and including regulations on the safety of workplaces, the safety and suitability of workplace equipment, the use of display screen equipment, the risks of manual handling and the requirement for agency and fixed-term workers to the same level of protection as permanent workers;
• Important protection of workers’ rights, guaranteed by the State, in the event of the insolvency of their employer;
• Other provisions, including rights to a written statement of terms and conditions, protection of data processing and collection on workers, and some, limited rights in the EU Charter, and guarantees of legally required terms and conditions to posted workers.

Michael Ford argues these EU social rights are currently the subject of very strong legal guarantees, much stronger than other rights flowing from international treaties signed by the UK, such as the European Charter of 1961, the European Convention on Human Rights and some Conventions of the International Labour Organisation (ILO). He maintains that by a variety of means the UK Government, State bodies and the courts are required to give effect to EU-derived employment rights and to ensure effective remedies for infringement of those rights, including full compensation where the means of enforcement is individual claims. They effectively prevent the Government acting to override them and require the UK to give full practical effect to them. At present, almost all EU-derived employment rights operate as a floor, not a ceiling, and do not prevent a Member State, if it so chooses, enacting domestic legislation which gives a higher level of protection to workers.

Ominously, Michael Ford then goes on to point out that in the event of Brexit a future Government would have almost complete legal freedom of action in relation to those areas of working life currently protected by EU social rights. The duties set out in other international treaties which the UK has ratified place a much weaker restraint on a Government committed to deregulation in the employment sphere.

It is much harder to predict which provisions currently guaranteed by EU law a future Government with a regulatory agenda would target for repeal or amendment in the near future but Michael Ford has tried to identify likely targets based on policy documents of the present and previous Governments. He says:

“I think that EU-guaranteed rights especially vulnerable to repeal in the name of deregulation, austerity or reducing burdens on business include provisions on collective consultation; many working time rights (especially the level of pay in respect of annual leave); some of the EU-derived health and safety regulations; substantial parts of TUPE; legislation protecting agency workers and other “atypical” workers; and those elements of discrimination law imposing what are seen as large financial awards on employers, such as equal pay awards for long standing discrimination in pay arrangements (and perhaps discrimination on which there is less political consensus, such as age discrimination). Provisions which place significant costs on business or the Government, such as insolvency protection, are also vulnerable to repeal in times of austerity. But all the social rights in employment currently required by EU law would be potentially vulnerable and a Government highly committed to labour market deregulation might go much further”.

Michael Ford goes on to explain that following Brexit the likely legal mechanism used to amend or repeal legal rights guaranteed by EU law would not simply be to repeal the European Communities Act 1972. He sees it far more likely that a Government with a regulatory agenda would revoke, amend or repeal legislation piece by piece, including transitional provisions to clarify how these changes affect past and future transactions.

EU Member States are required to ensure that sanctions for breach of EU-derived rights are effective, proportionate and dissuasive and provide analogous procedural rules and penalties as apply to similar infringements of national law. These rules mean that if civil claims are the route chosen for enforcing EU rights, which they usually are, the compensation must be an adequate and genuine deterrent; if criminal sanctions are used, they too must ensure adequate protection in practice. A Brexit would free a Government from these constraints, allowing it to introduce caps on compensation or other measures to limit the practical enforcement of rights.

In concluding his advice Michael Ford explains that UK common law provides almost no effective protection of workers’ rights because it places no effective restriction on the power of the employer to dictate the terms of the contract; allows the employer to change those terms at any time by the device of dismissal and re-engagement; provides no restriction whatsoever on the right of the employer to dismiss for any or no reason; and gives no proper compensation for wrongfully dismissed employees. The only valid protection given by the common law is to those workers unfortunate enough to suffer an injury due to their employer’s fault. Whether statute law would compensate workers for the absence of protection under common law is, ultimately, a political question but the signs from the previous and present Government point to a reversal of many of the important social rights currently guaranteed by EU law.

After Brexit the mechanisms for enforcing EU-derived rights would greatly diminish. Workers will not be able to enforce EU rights directly; the duty to interpret national law in accordance with EU law will greatly weaken and, most fundamentally, a future government could simply reverse legal rulings it did not like.

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