Workers’ rights beyond Brexit

13 Feb 2017, by Tim Nichols in Labour market

When the government published a white paper on Brexit priorities, we hoped it would give more certainty to working people on what the future holds. But it poses more questions than it answers. And it fails to give the reassurances workers need for their rights at work.

During the referendum campaign, the TUC highlighted just how many of our vital workplace rights are guaranteed by EU law. And we warned that they could be at risk if we leave the EU.

Theresa May has sought to allay concerns by promising that all these rights will be transposed into UK law. That sounds good on the surface, but dig a little deeper and the problems appear.

The long-term threat to workers’ rights

The Prime Minister’s promise may keep workers’ rights safe for the short-term. But in the longer-term, the risk remains.

There’s no shortage of politicians who have argued that we should use Brexit to weaken or scrap many of the workers’ rights that the EU guarantees. In the years to come, one of them may end up in 10 Downing Street.

Take Priti Patel MP, one of the prominent leave campaigners. She argued during the referendum that we should ‘halve the burdens of EU social and employment legislation’ – in other words, scrap half of the workers’ rights we currently get from the EU.

Or there’s Boris Johnson – might he one day have a more successful Conservative leadership campaign? If so there will be trouble for workers’ rights. He said we should get rid of “all that social chapter stuff”. That “stuff” includes guarantees of your paid holidays, fair working hours and parental leave rights.

Without our EU treaty agreements, a future Prime Minister would find it very easy to reduce or scrap rights at work, especially for workers on weaker terms of employment, like agency staff and part-timers. And we can expect elements of the business lobby to press future governments for workers’ rights to be eroded.

The danger of falling behind future EU workers’ rights

The government has said it’s committed to “maintaining our status as a global leader on workers’ rights and will make sure legal protection for workers keeps pace with the changing labour market.”

It’s a laudable aspiration, but there’s been no explanation of how it will be achieved. And there’s been no explanation of what will happen when workers’ rights are improved in the EU. Will British workers be left behind?

It’s a question that could have consequences very soon, because the EU is now looking at several areas of potential improvement, including:

Better protections for posted workers , ensuring they receive equal treatment and the going rate for the job when working in another country. These measures will ensure employers cannot use migrant workers to undercut and drive down pay and conditions.

, ensuring they receive equal treatment and the going rate for the job when working in another country. These measures will ensure employers cannot use migrant workers to undercut and drive down pay and conditions. Improved rights for working parents , including enhanced rights to paternity and parental leave and better access to flexible working arrangements.

, including enhanced rights to paternity and parental leave and better access to flexible working arrangements. A stronger pillar of social rights, which could provide enhanced protection in areas such as equal opportunities, access to the labour market, fair working conditions and stronger social protection.

The common floor of EU rights is important because it ensures that European countries do not undercut the competition by downgrading workers’ rights. But the common floor will be gone for British workers if the government does not come up with a plan to keep up with improvements to it.

In fact, the government might actively pursue an approach of leaving us behind. A warning shot has already been fired to the EU. Chancellor Philip Hammond said that if we don’t get the Brexit we want, the UK will “change our model to regain competitiveness. And you can be sure we will do whatever we have to do.”

Working people did not vote for worse rights that the rest of Europe. The government will be betraying them if they take the low road of offering businesses workers on the cheap, with second class rights. Britain should always take the high road of making ourselves competitive by investing in the skills of our workforce, and the quality of our infrastructure and public services.

Erosion of rights through new legal interpretation

As a part of our Brexit settlement, the government says it wants the UK to leave the jurisdiction of the European Court of Justice (ECJ). This would mean that UK courts could ignore decision of the ECJ which have favoured working people.

UK workers have benefitted from ECJ rulings in many ways. Women in the UK won the right to equal pay for work of equal value thanks to decisions of the ECJ. Similarly, part-time workers secured equal access to occupational pensions, and agency workers and freelancers secured rights to paid holidays. Thanks to the ECJ, outsourced workers’ employment and pay and conditions are protected. Unions also have the right to put forward alternatives to collective redundancies and employers must consider adjusting their plans in response.

So while the transposition of EU workers’ rights into UK law may leave it looking like we have the same rights on paper, they may end up weaker in practice once they are put to the test in UK courts.

How to make Brexit water-tight for workers’ rights

How do we deal with these problems?

First, we need to make sure that our existing rights are fully protected. That means looking at how to ensure that the rights won through case law are protected when we leave the European Union, as well as those gained through direct legislation.

Then we need to ensure we keep pace with future rights too. The best is for the UK’s future trade agreements with the EU to include a commitment to abide by EU standards for workers’ rights. The commitment should apply not only to current rights, but to future rights too.

This would lock in guarantees for the long-term. And it would mean that when workers’ rights improve across the rest of Europe we will not be left behind.

It will help ensure that Britain takes the high road when it competes for global business by having the best workers, not the low road of offering the worst workers’ rights.

If the government does this, Britain’s workers will know that their rights are protected for the long term. And they will know that they will not be left behind as Europe’s second class citizens when workers’ rights are improved in the rest of Europe.

So the TUC is calling on the Prime Minister to make a clear public commitment to this approach.

We also believe that during any transitional period before our final relationship with the EU is determined, the government should agree to continue complying with EU employment law. This would provide certainty to both workers and businesses.

And the government needs to think more carefully about the consequences of leaving the jurisdiction of the ECJ. A way must be found to address the loss of reference to ECJ judgments which have bolstered individual rights.