Forty years of progress on rights at risk for workers if Britain Brexits

07 Apr 2016, by Owen Tudor in Working Life

The TUC has published today a legal opinion from prominent legal expert Michael Ford QC – Employment Silk of 2015 – which warns of years of chaos as a post-Brexit government re-regulates British employment law. The advice he has given the TUC lists the workplace rights which are most under threat from Brexit, and gives a chilling insight into the legal environment likely if Britain votes to leave the EU on 23 June.

Michael Ford, now Professor of Law at the University of Bristol, says that “there is no precedent for the kind of radical overhaul of laws which would potentially flow from Brexit”. And he says that simply repealing the European Communities Act 1972, as some Brexit supporters appear to advocate, is an “almost unimaginable” course of action, which would lead to “legal and commercial chaos”. More likely is a lengthy transition in which the government could pick and choose which EU rights to dilute or scrap. This would create long-term uncertainty and confusion for both employers and workers, and it could result in workers losing many hard-won rights at work.

Michael Ford QC’s legal opinion states:

“All the social rights in employment currently required by EU law would be potentially vulnerable. … It is easy to contemplate a complete reversal of the gradual increase in social regulation protecting workers which has taken place since the 1960s.”

The rights most at risk would be:

working time rules, including limits on working hours and rules on the amount of holiday pay a worker is entitled to;

Transfer of Undertakings (TUPE), i.e. the EU-derived protections to the terms and conditions of workers at an organisation or service that is transferred or outsourced to a new employer;

protections for agency workers and other ‘atypical’ workers, such as part-time workers;

current levels of compensation for discrimination of all kinds, including equal pay awards and age discrimination; and

rights for workers’ representatives to be consulted if major changes are planned that will change people’s jobs or result in redundancies (as have been used in recent major announcements in the steel industry).

But other workers’ rights would not necessarily be safe, and workers would be left with only the UK courts to enforce those rights that remain. That might not be something we can rely on, as Michael’s advice points out. The European Court of Justice has generally taken a far more positive approach to workers’ rights – especially in the area of equality – than UK courts. And access to justice has been severely curtailed by Employment Tribunal fees set at levels that deter people with valid cases from making a claim. Even where workers successfully enforce their rights through the UK system, outside of the EU there would be nothing to stop the Government changing the law speedily to make sure no one else can benefit.

TUC General Secretary Frances O’Grady says that:

“Voting to leave the EU is a big risk for everyone who works for a living. Brexit would mean working people are haunted by years of uncertainty, as rights like paid holiday, parental leave and equal treatment for part-timers and contract workers could be stripped away over time. “The EU guarantees these rights, but generations of trade unionists fought for them. If we lose them because of Brexit, it could take generations to get them back again. The biggest cheerleaders for Brexit think that your protections at work are just red tape to be binned. Bad bosses will be rubbing their hands with glee if Brexit gives them the chance to cut workers’ hard-won protections.”

Read the full legal opinion