Is a ‘bonfire of workers rights’ likely in the UK post-Brexit?

Even before the UK’s referendum over whether to leave the European Union (EU) more than two years ago, there was much speculation around what Brexit might mean for the country’s employment law.

In the early days, there were widespread predictions of a “bonfire of workers’ rights”. Although the latest indications appear to be very much at the other end of the spectrum, still nothing is certain.

White Paper

On 12 July, the UK Government published a White Paper entitled ‘The Future Relationship between the United Kingdom and the European Union’. It detailed the Government’s plans for delivering Brexit and possible interaction between the UK and EU after the country leaves the European trade bloc.

The White Paper is more than 100 pages long and deals with a wide range of issues from defence and data protection to criminal justice and fishing rights. But tucked away in paragraphs 121-123, there is also a section on employment, which can be summarised as follows:

• Existing workers’ rights enjoyed under EU law will continue to be available under UK law on the day of withdrawal;

• The UK already exceeds EU minimum employment standards in a number of areas, and leads in many others; 

• The country proposes that the UK and the EU commit to non-regression of labour standards and that they mutually pledge to uphold their International Labour Organization commitments.

What will a post-Brexit employment law landscape look like?

The above suggests that the Government does not plan to make any changes to employment law to the detriment of employees and workers.

Many employment lawyers had predicted that little would change after Brexit in relation to employment legislation, particularly in the early days. This view was a reasoned one. While a lot of UK employment laws emanate from Europe, many go beyond its minimum requirements. For example:

• Unfair dismissal legislation is an entirely domestic creation and exists nowhere else in Europe;
• English law has voluntary ‘gold-plated’ Transfer of Undertakings (Protection of Employment) or TUPE regulations, which protect the rights of employees when one business is transferred to another;
• Maternity and other family leave entitlements are more generous than the minimum required under European legislation;
• The UK led the way with the Modern Slavery Act, which is a domestic law rather than one imposed by Europe.

But few employment lawyers predicted that nothing would change post-Brexit. Many considered it likely that the country would take the opportunity to make a few changes to unpopular (for some) legal developments that had emanated from the European courts. Common predictions here included:

• Changes in relation to holiday pay and working time;
• Agency worker regulations;
• A cap on compensation in discrimination claims.

Not the final word

The White Paper provides absolutely no indication of whether any of these changes are likely nor does it suggest that other reductions in workers’ rights are part of the plan. But that is not to say we can expect employment law to become stagnant.

The White Paper references the Taylor Review of Modern Working Practices, and states the UK is ensuring that employment practices keep pace with rapid technological change. Undoubtedly, the gig economy and zero hours contracts will continue to be hot legal topics here.

The document also states that the EU’s Court of Justice will no longer have the power to make laws for the UK. At present, many UK employment practices have been shaped by previous EU decisions. But it is currently unclear whether ‘non-regression of labour standards’ would extend to following the EU Court of Justice’s legal interpretations post-Brexit, relating to laws that were in force in the UK prior to Brexit.

For example, the UK’s Working Time Regulations, which derive from the European Working Time Directive, would still be applicable. But if a European court interprets the Directive to mean that an employee accrues holiday pay at a certain level while taking long-term sickness absence, or that holiday pay calculations should take into account overtime and bonuses, would courts in England, Wales, Scotland and Northern Ireland be obliged to follow suit? It is currently unclear.

The White Paper does not have the force of law, and it is certainly not the final word on post-Brexit arrangements. It is currently only a proposal and remains aspirational, subject to what can ultimately be agreed with the EU. Nonetheless, come March 2019, a “bonfire of workers’ rights” seems less likely than ever.

Anne-Marie Balfour is a solicitor and legal director in the employment, pensions and immigration team at Charles Russell Speechlys LLP. She advises employers and senior executives on all aspects of employment law. Anne-Marie has particular expertise in employment law with an immigration angle and her articles are frequently published in the national and trade press. 

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What might Brexit mean for UK employment law?

Even before the UK’s referendum over whether to leave the European Union (EU) more than two years ago, there was much speculation around what Brexit might mean for the country’s employment law.

In the early days, there were widespread predictions of a “bonfire of workers’ rights”. Although the latest indications appear to be very much at the other end of the spectrum, still nothing is certain.

White Paper

On 12 July, the UK Government published a White Paper entitled ‘The Future Relationship between the United Kingdom and the European Union’. It detailed the Government’s plans for delivering Brexit and possible interaction between the UK and EU after the country leaves the European trade bloc.

The White Paper is more than 100 pages long and deals with a wide range of issues from defence and data protection to criminal justice and fishing rights. But tucked away in paragraphs 121-123, there is also a section on employment, which can be summarised as follows:

• Existing workers’ rights enjoyed under EU law will continue to be available under UK law on the day of withdrawal;

• The UK already exceeds EU minimum employment standards in a number of areas, and leads in many others; 

• The country proposes that the UK and the EU commit to non-regression of labour standards and that they mutually pledge to uphold their International Labour Organization commitments.

What will a post-Brexit employment law landscape look like?

The above suggests that the Government does not plan to make any changes to employment law to the detriment of employees and workers.

Many employment lawyers had predicted that little would change after Brexit in relation to employment legislation, particularly in the early days. This view was a reasoned one. While a lot of UK employment laws emanate from Europe, many go beyond its minimum requirements. For example:

• Unfair dismissal legislation is an entirely domestic creation and exists nowhere else in Europe;
• English law has voluntary ‘gold-plated’ Transfer of Undertakings (Protection of Employment) or TUPE regulations, which protect the rights of employees when one business is transferred to another;
• Maternity and other family leave entitlements are more generous than the minimum required under European legislation;
• The UK led the way with the Modern Slavery Act, which is a domestic law rather than one imposed by Europe.

But few employment lawyers predicted that nothing would change post-Brexit. Many considered it likely that the country would take the opportunity to make a few changes to unpopular (for some) legal developments that had emanated from the European courts. Common predictions here included:

• Changes in relation to holiday pay and working time;
• Agency worker regulations;
• A cap on compensation in discrimination claims.

Not the final word

The White Paper provides absolutely no indication of whether any of these changes are likely nor does it suggest that other reductions in workers’ rights are part of the plan. But that is not to say we can expect employment law to become stagnant.

The White Paper references the Taylor Review of Modern Working Practices, and states the UK is ensuring that employment practices keep pace with rapid technological change. Undoubtedly, the gig economy and zero hours contracts will continue to be hot legal topics here.

The document also states that the EU’s Court of Justice will no longer have the power to make laws for the UK. At present, many UK employment practices have been shaped by previous EU decisions. But it is currently unclear whether ‘non-regression of labour standards’ would extend to following the EU Court of Justice’s legal interpretations post-Brexit, relating to laws that were in force in the UK prior to Brexit.

For example, the UK’s Working Time Regulations, which derive from the European Working Time Directive, would still be applicable. But if a European court interprets the Directive to mean that an employee accrues holiday pay at a certain level while taking long-term sickness absence, or that holiday pay calculations should take into account overtime and bonuses, would courts in England, Wales, Scotland and Northern Ireland be obliged to follow suit? It is currently unclear.

The White Paper does not have the force of law, and it is certainly not the final word on post-Brexit arrangements. It is currently only a proposal and remains aspirational, subject to what can ultimately be agreed with the EU. Nonetheless, come March 2019, a “bonfire of workers’ rights” seems less likely than ever.

Anne-Marie Balfour is a solicitor and legal director in the employment, pensions and immigration team at Charles Russell Speechlys LLP. She advises employers and senior executives on all aspects of employment law. Anne-Marie has particular expertise in employment law with an immigration angle and her articles are frequently published in the national and trade press. 

OTHER ARTICLES THAT MAY INTEREST YOU

Contingency planning for Brexit

What will a 'no-deal' Brexit mean for UK business?

What might Brexit mean for UK employment law?