10 reasons why we really should be worried about Brexit’s impact on workers’ rights
The TUC has been fighting attempts to scrap the workers’ rights we have won from the European Union for nearly a year. First we had to fight off the Prime Minister’s plan to use his renegotiation strategy to reduce worker protections; secure a further UK opt out from them; or even introduce a moratorium on new rights. The absence of such measures in the final European Council agreement in February confirmed the success of our campaign, conducted with the help of unions and friendly politicians here in the UK and across the EU. Now we’re battling to stop a Brexit putting all those rights at risk. We know EU employment rights are popular with the electorate (confirmed again by the GQRR opinion poll at the weekend), and that blue collar workers in particular understand that they wouldn’t be safe in the hands of the Conservatives and their business friends.
But not everyone really believes us when we say those rights are at risk (not everyone believed us when we said David Cameron was hoping to scrap them in his renegotiation strategy, either…) So, for those like Financial Times employment correspondent Sarah O’Connor who don’t accept the case made yesterday by top employment lawyer Michael Ford QC, here are the top ten reasons why we’re not optimistic that a post-Brexit Government would keep its sticky mitts off the workers’ rights trade unionists have fought for and won in the European Union.
- Does anyone really want to take our rights away?
Er, yes. There have in fact been lots of proposals to take away workers’ rights from politicians, right-wing think tanks and employers. Here are just a few examples:
- Then chair of the European Conservatives and Reformists group in the European Parliament, Conservative MEP Martin Callanan, called for the scrapping of the Working Time Directive, the Agency Workers’ Directive, the Pregnant Workers’ Directive “and the other barriers to actually employing people.”
- Leading Conservative think tank Civitas wrote: “Securing an opt-out from TUPE with respect to public services should be a key priority. If private sector entities cannot alter pay, conditions or employment for a designated period following the transfer of control, fewer firms will bid to take control of public services and savings in any restructuring will be curtailed.”
- Government adviser Adrian Beecroft’s review of employment law suggested “UK law could be changed so as not to make discrimination a tort. Capped rules for the level of compensation for loss of employment could then be introduced, with the same limits as for unfair dismissal…The compensation for loss of earnings part of the award for discriminatory dismissal should be capped as described above.”
- The British Chambers of Commerce agenda for the Prime Minister’s renegotiation strategy was clear “British business’s ‘top three’ priorities for any re-negotiation of the balance of competences between Brussels and Westminster are 1) employment law (54%), 2) health and safety law (46%),” and regional development policies.
We know – from people in the capital cities around Europe who were visited by Conservative Ministers during the renegotiation roadshow, that the Government was eyeing up a raft of employment measures either for dilution or an extended British opt-out. And that’s from the people who want to stay in the European Union.
- Respectable business leaders don’t want to take away workers’ rights
It’s certainly true that there are lots of employers who don’t want to take away workers’ rights, and even a few Conservatives still understand that if you disrespect your workers or treat them badly, they won’t be productive or committed. Employer organisations like the CBI, the Chemical Industries Association and the Engineering Employers’ Federation know that there are good reasons for a basic floor of employment rights. But we have laws to deal with bad employers, not saints. Many employers just aren’t as pure as the best, and would lobby and press the government in place after a Brexit vote (does anyone seriously think it will have shifted left?) to take away the rights the EU has up to now guaranteed.
- And, er, actually, even the respectable ones do….
Or at least they want to dilute important elements of EU employment law and the judgments of the European Court of Justice. Last September, then CBI Director General John Cridland wrote to the Financial Times saying that although business did not
“want to sweep away the rights EU laws provide … where we believe your editorial to be incorrect is in suggesting that no further changes are desirable. The example of the existing directive on working time is instructive. This required previous governments to work hard to secure an individual opt-out. It’s important to business for that opt-out to be secured in the long term. The complexity of the directive has also resulted in legal challenges — like last year’s cases on holiday pay — where the directive clashes with existing UK law.”
He was echoing a letter from Europe Minister David Lidington MP to the TUC, which set out a number of reforms the Government was seeking “to address problems caused by European Court Judgments on on-call time, compensatory rest and holiday pay,” as reported in the Financial Times. Even the moderate wings of the employer movement and Conservative Party want to see changes to the Working Time Directive, and also to the Temporary Agency Workers Directive, equality laws and so on.
- The rights that might go wouldn’t be that important
Not if you’re a highly skilled worker in a good job with a good employer. It might seem like the possible changes are just nibbling at the edges.
But if you’re
- one of the many pregnant women facing the sack without adequate compensation for the loss of your pension rights; or
- a part-time worker fitting your work schedule round the school run, and whose boss would rather pay you less than the full-time workforce because you’re ‘only working for pin money’; or
- one of the two million people who didn’t get a paid holiday at all before the Working Time Directive; or
- someone being asked to travel between appointments whose employer thinks travel time should be at your own expense; or
- facing the risk of losing your job or getting worse pay and conditions if their job is outsourced ….
….well, it might all be a bit more important.
- They’re only holding off because they have to
Rights that weren’t protected by being written into European Union laws have been attacked by the current Government and its predecessor, the Coalition Government – such as the Agricultural Wages Board, elements of TUPE, Employment Tribunal fees and of course the current Trade Union Bill. The reason the Government hasn’t attempted to revise EU rights is because they can’t. But even there, the Beecroft Report argued in favour of refusing to implement the Temporary Agency Workers Directive and Christopher Chope MP has a Private Members’ Bill down to allow the Government to “limit” the implementation of the Working Time Directive, starting with the restrictions on the working hours of “doctors and other health professionals”, on the treatment of on-call time, and the calculation of holiday pay. The MPs co-sponsoring the Bill –Peter Bone, Philip Davies, Philip Hollobone, Sir Edward Leigh and David Nuttall – are precisely the MPs who are rebelling against David Cameron to call for a Brexit.
- Haven’t we always had these rights?
We haven’t, and we got some of the ones we did get before joining the EU in completely different political circumstances such as the 1960s. The Equal Pay Act 1970 was indeed enacted before the UK joined the Common Market in 1973, although it was in the run up to joining a body which included equal pay in its very founding treaty, so it’s uncertain that it would have been introduced if we hadn’t been heading for entry. But the crucial difference made by EU membership is that it has made the Equal Pay Act more effective, introducing the principle of equal pay for work of equal value, removing the requirement to find a male comparator for someone disadvantaged due to pregnancy, and ensuring workers are properly compensated if they face discrimination in the workplace.
- The rights in EU laws are uncontroversial
Actually past UK governments – both Conservative and Labour – have regularly resisted proposals for EU workers’ rights directives. The Major Government actually took the European Union to court to prevent the Working Time Directive coming into effect, and the Blair/Brown Governments opposed the Information & Consultation Directive until it became clear they would be outvoted by other countries.) It’s possible that all the politicians who opposed these laws when they were being introduced have undergone a Damascene conversion and would now support them all, given the choice, but we’re not keen to test that theory.
And if the lesson of the last forty years of EU employment law is that such laws inevitably turn from major threats to the economy, to jobs, to freedom for managers to manage and so on – all the claims thrown in the past at them – into worthy and acceptable legislative protections, presumably the current Government will be entirely open to new laws being introduced to improve workers’ rights still further – such as improving the rights of people on Zero Hours Contracts, putting some teeth into the Temporary Agency Workers Directive, or extending worker rights to domestic servants as required by the 2011 ILO Convention. No, strangely not, the current Government – and those nice people at the CBI – don’t think any new workers’ rights are needed, which undermines suggestions they are wholly convinced by the need to keep all of the current ones. As an indication, the CBI was one of only 16 out of 396 organisations to vote against the ILO Convention on Domestic Workers. The UK Government abstained, along with El Salvador, Panama and Sudan.
- Workers aren’t using these rights anyway, or at least, they can’t…
The introduction of Employment Tribunal fees so high that people are deterred or even prevented from taking cases to enforce their rights has undermined the effectiveness of EU workers’ rights – although unions are still winning thousands of cases, demonstrating that employers haven’t all become angels. And without access to the European Court of Justice (ECJ) as the ultimate backstop, we cannot rely on the British courts enforcing those rights that remain after Brexit.
Just a few examples show why workers need access to someone to review the decisions of the UK Court of Appeal (CA):
- in 2004 (Marshalls Clay v Caulfield), the CA said that rolling up holiday pay was legal, but in Robinson-Steele two years later the ECJ found that it wasn’t;
- in 2005 (Stringer) the CA ruled that a worker on sick leave was not entitled to annual leave and it took four years for the case to reach the ECJ which held that they were;
- in 2004 (Bamsey) and 2009 (Williams), the CA decided there was no prescribed level of pay for annual leave but in 2012 (Williams v British Airways) and 2014 (Lock v British Gas), the ECJ found differently.
- What exactly do they want to repatriate powers over employment law for, then?
Numerous business bodies, right-wing think tanks and Conservative politicians have not been too specific about why they want to repatriate powers from Brussels over employment law (a call regularly made without detail of why). We are really not being conspiracy theorists when we suggest the purpose is to reduce or water down – if not entirely scrap – such rights. If they wanted to improve on them, they could already, as almost all EU employment law is explicitly designed as the minimum provision, with the option of adding to the rights set out in the directives. And as we’ve said many times, it isn’t a hypothetical question to ask “what legal rights to paid holiday for everyone would a British Parliament enact without the Working Time Directive?” We already know: there were no such laws until union campaigning across Europe – where UK trade unions can count on the support of other trade unionists working with more progressive Governments – secured a legal right through the Directive.
- Cheer up, it may never happen
The ideology of the first post-Brexit government will have shifted to the right. The objective will be to make the UK still more ‘competitive’, more ‘flexible’, more ‘entrepreneurial’ – all code for more like the USA.
You only have to look at the Conservative Government’s Trade Union Bill which:
- has been roundly criticised by the EHRC and the International Labour Organisation’s Committee of Experts for making strikes virtually impossible to mount by low-paid women public servants;
- would decimate union funding by making it illegal for public sector employers to agree to a workers’ request to deduct their union subscription straight from their pay and send it to the union; and
- would impose burdens on unions that David Davis MP called reminiscent of Franco’s Spain.
This law wasn’t set out in full in their manifesto; wasn’t demanded by nice, friendly employers; and was dreamt up by the people who are likely to be forced out as bleeding heart liberals by a Boris Johnson-led Tory Government.
Workers should be really, really careful what the Brexiteers are wishing for.