We are fast approaching what could be the decisive moment of the entire Brexit process. The House of Commons is due to vote on the Prime Minister’s draft Brexit deal on the 11th December and, with every indication so far that she is headed for a historic defeat, the possibility of a collapse of the Article 50 process, or even of the entire government, and the associated risk of a No Deal Brexit must seriously be considered. What implications might this have for the UK workforce and what should employers and trade unions be thinking about in such a scenario?
As it stands, the UK is due to leave the European Union by automatic operation of both UK and EU law at 11pm on 29th March 2019, with or without a deal. Simultaneously, the European Communities Act 1972, which gives legal force in the UK to EU directives, rights and regulations will cease to operate. Thanks to the European Union (Withdrawal) Act 2018 (colloquially and misleadingly referred to as the ‘Great Repeal Bill’), previous EU regulations, including on employment rights, will be transposed directly into UK law regardless of whether we leave the EU with or without a deal. However, whereas under Theresa May’s deal we would enter a transitional period until at least the end of 2020 and potentially be bound to shadow or maintain equivalence with EU employment rights through that period and beyond (including ECJ jurisdiction to enforce such rights), without a deal no new changes to EU employment rights would apply in the UK after 29th March next year.
Enforcement of existing rights would fall solely to UK courts and employment tribunals, with no further right of appeal to the ECJ. While in practice there doesn’t seem any reason to think existing rights would not be enforced any longer, we could certainly imagine a potential drop in compliance following the reduction in enforcement infrastructure and lack of EU-level pressure to enforce compliance. More troublingly, there would be nothing to prevent the UK government from acting to repeal significant parts of the Social Europe regulations.
The EU has strengthened both individual and collective workplace rights immeasurably over the past four decades. Examples include stronger rights for working parents and women, guarantees over maximum working time and minimum holidays, protection against discrimination, equal treatment for ‘atypical’ workers and regulations such as TUPE which offer protection for employees being transferred to a different employer or those facing redundancy. In addition, the EU has been fundamental in extending and enshrining health and safety regulations in the UK. Finally, the EU has strengthened rights surrounding collective voice at work via the Information and Consultation Directive and the right to request European Works Councils in large multinationals operating across EU member states.
Many of these protections are much derided by those on the libertarian right, led by the vision of a buccaneering Britain unshackled from the ‘red tape’ of regulation as outlined by the five authors of the 2012 “Britannia Unchained” book; all of whom are now senior government figures including recently departed Brexit Secretary Dominic Raab, new junior Brexit Minsiter Kwasi Kwarteng, two other Cabinet Ministers and a Conservative Vice Chair. Theresa May has promised explicitly that “Existing workers’ legal rights will continue to be guaranteed in law – and they will be guaranteed as long as I am prime minister.” With the political situation being what it is, however, such a promise is not perhaps as reassuring at this time as she might have hoped when she made it back in 2016.
A new Conservative Prime Minister from this wing of the party would no doubt be keen to scrap a number of these landmark employment rights, with the Working Time Directive, TUPE and anti-discrimination legislation considered particularly high priority targets. As IPA have previously argued, however, to do so would be a serious mistake. It would inflict major harm on working people and there is little evidence that it would do anything to seriously boost productivity; in fact it might do quite the opposite by encouraging industrial disputes and further undermining employee engagement at a time when morale is likely to already be at rock bottom as a result of economic shocks. Furthermore, the EU would be bound to retaliate against a perceived uneven playing field of employment rights by further restricting our access to the single market and making any future trade deal to escape the economic damage of a no deal Brexit that much harder.
Rather than countenance such a scenario, the government (whoever may lead it in the months ahead) should do everything possible to provide continuity, stability and continued reassurance to working people in Britain that, whatever happens, their fundamental rights at work will not be at risk.
Patrick Briône is Head of Policy & Research at the IPA
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