Background
It has been claimed that over the years of EU membership that EU employment and social legislation has been a drag on UK productivity. It is claimed that the UK’s international competitiveness could be regained or increased by deregulation of the labour market. The UK originally opted out of the Social Charter, before the1997 Labour government acceded to it.
During the Brexit campaign, the Remain side emphasised the role of EU laws in protecting workplace rights. including the rights to paid holiday leave, working hours, equality, health and safety standards and parental/maternity rigthts.
On being elected to office, Theresa May emphasized that the government would not seek to dismantle EU employment rights. In her Lancaster House Speech of January 2017, she that the government would protect the rights of workers in European legislation and build on them. The government would make sure that protections for workers kept pace with the changing labour market and that the voices of workers would be heard on the boards of listed companies for the first time. This view has been repeated several times, including n the White Paper on the repeal bill.
Apart from political commitment, it is likely any trade agreement between the UK and the EU will have some provisions on maintaining a floor of basic employment rights, so as to ensure a level playing field and prevent unfair competition. The EU negotiation mandate provides that any future free trade agreement must provide a level playing field in terms of competition and state aid and must encompass safeguards against a competitive through ..…tax, social, environmental regulatory measures or practice.
Many UK Rights Exceed EU Minimum
The White Paper indicates that the UK is committed to maintaining the UK as a global leader on worker’s rights and to make sure that protection for workers keeps pace with the changing labour market.
The Prime Minister in her Lancaster House speech in January 2017 pointed out that in several areas the UK provided greater employee protection than the EU minimum. For example,
- 5.6 weeks of statutory annual leave (4 weeks EU law).
- 52 weeks of statutory leave and 39 weeks of pay (14 weeks EU law minimum).
- Greater flexibility regarding parental leave (to 18th birthday).
- The National Living Wage.
Many aspects of EU law are minimum requirements and do not prevent the states from providing more extensive rights. Many states do provide such provide more extensive rights. The UK has provided greater rights than the EU minimum in many employment-related areas.
There have been reductions of rights in areas not regulated by EU law since 2010, more notably the increase in the qualification period for unfair dismissal.
The Lancaster House speech also indicated that if negotiations for a new deal did not succeed or there was a punitive deal (no deal for Britain is better than the bad deal for Britain,) that the UK would be free to set competitive tax rates and embrace policies that would attract the world’s best company and biggest investors to Britain.
Some EU employment rights reflect Continental practices and policy in relation to corporations/companies. In particular, the provisions for representatives at board level in corporations is distinctly European and may not be supported post Brexit. The Prime Minister has indicated that the UK will retain and develop laws on employee participation in corporate management structures.
If a comprehensive agreement is entered between the UK and the EU, it is likely that there will be provisions which seek to preserve the level playing field, including in the area of employee rights.
EU Employment Law
In broad terms, EU derived employment legislation applies in the following categories.
Consultation and participation
- Directives on information and consulting
- European Works Council,
- ECS,
- collective redundancies,
- transfers of undertaking and
- in some cases more generally;
Equality
- Treaty on equal pay
- Directive on social security
- Directive on equal pay and treatment.
- Directive on race
- Directive on sexual orientation, age, etc.
- Directive on a self-employed
Family rights.
- Directive on pregnant workers
- Directive on part-time workers
- Directive on fixed-term workers.
- Directive on agency work.
- Directive on parental leave.
Working time.
- Directive on working time;
- Directive on young workers;
- Directive on workers in cross-border railway services civil aviation and road transport.
- Direct regulations on daily and weekly driving times
Directive on Health and safety.
- Framework directive on health and safety.
- Directive on minimum workplace requirements.
- Directive on personal protective equipment.
- Directive on display screen equipment.
- Directive on manual handling of loads.
- Directive on atypical workers.
- Directive on construction sites.
- Directive on extractive industries.
- Directive on safety signs.
- Directive on noise
- Directive on mechanical vibration.
- Directive on biological agents.
- Directive on work equipment.
- Directive on carcinogens
- Directive on asbestos
- Directive on explosive atmospheres
- Directive on electromagnetic fields.
The Repeal (and Restatement) Act
The “Repeal” Act will reenact existing EU law, including those elements of employment law that are not reflected in freestanding UK legislation on Brexit day. The directly applicable EU regulations will continue to have effect.
In the employment field, very many employee rights are derived from EU directives which have been implemented in the UK. Most of these have been implemented in legislation or orders under the European Communities Act 1972.
The White Paper indicates that where protections are provided by the EU treaties that they will be preserved. Where rights in the treaties can be relied on directly by an individual in court, it is intended that they are incorporated into UK law.
The White Paper also indicates that if there is a conflict between pre-Brexit laws and post-Brexit laws between two pre Brexit laws, one of which is has an EU basis, and one of which is not, the EU basis (which would have carried the principle of EU supremacy) will take precedence (necessary to maintain consistency).
The Repeal Act provides that changes may be made to secondary legislation by Order in Council. To the extent that employment rights derived from EU directives are reflected in such secondary legislation, they may be subject to change without Act of Parliament subject to the scrutiny provisions under the Repeal Act.
The Repeal Act proposes that questions of EU derived law are to be interpreted by reference to the CJEU case law as it applies on Brexit day. This is necessary from the perspective of continuity and consistency of law. After Brexit, the Supreme Court can in principle depart from EU precedents. However, it is expected that it will do so occasionally, sparingly. Parliament may change the law at any time and it may be capable of change under the Repeal Act to the extent permissible thereunder. It is likely that British courts, UK courts will continue to find EU cases on legislation derived from a common to be persuasive.
Limits on Continuity
It seems likely that the UK courts will continue to have regard to the provisions of the EU treaties and EU case law in interpreting employment laws. In some cases, the employment law directives, are informed by particular treaty provisions, especially in the area of equality.
There are limits. The general EU principles in the Treaties, the Charter, EU citizenship, principles of market integration will longer apply and will cease to guide the courts in the interpretation of legislation.
Brexit will mean that courts may no longer refer to the Court of Justice for rulings on points of EU law. Previously where matters had concerned the UK, UK advocates participated. Intrinsically references, etc., from the UK will cease to exist so that the remaining case law might become somewhat different than it might otherwise have been.
Some labour law measures have a huge intrinsically multistate aspect, such as the Posted Workers Directive. The broad position is that the rules of the home state continue to apply. It is unclear as to how such principles will apply post-Brexit.
In so far as the Charter of Fundamental Rights informs or applies to employment law matters, it will be no longer available to challenge legislation or administrative acts in the UK. It is not intended to be incorporated in EU law as overriding law, or at all, by the Repeal Act.
The White Paper indicates that the removal of the Charter of from UK law will not affect the substantive rights that individual already benefit from, in the UK. Many of these underlying rights exist elsewhere in the body of EU law which will be converting into UK law. Others already exist in UK law, or in international agreements to which the UK is a party.
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