Workers’ Rights and the EU

The annoying thing about the debate that has blown up over the weekend about workers’ rights post Brexit is that it rarely gets down to specifics. Take the Financial Times story on Friday. It referred to the possibility of divergence between the UK and the EU when it came to employment and environmental standards but didn’t highlight any particular employment rights that might be under threat.

Andrea Leadsom (who as Secretary of State fort Business has overall responsibility for employment law) responded to the Financial Times story with a Tweet:

The line that ‘in many areas our standards are already higher then EU [sic]’ is a familiar one. But it doesn’t tell us very much. When it comes to employment law, EU standards are a floor, not a ceiling. They provide a minimum level of protection that all member states must meet. Of course we exceed minimum EU standards in some areas, it would be pretty shocking if we didn’t.

I would be more reassured about the Government’s commitment to workers’ rights if instead of vague comments about maintaining high standards, they were able to say something more specific. If Andrea Leadsom were able to say ‘I agree that there should be a 48 hour limit on the average length of a working week’ then that would be meaningful. I would also like to hear Liz Truss, the Minister for Women and Equalities, say something like ‘I believe that there should be no cap on the amount of compensation that can be awarded in a discrimination case’.

But the truth is that I struggle to envisage either Minster making such a specific commitment. When push comes to shove, the Conservative mindset is to regard employment law as ‘red tape’ that stifles innovation and competitiveness. That doesn’t mean that they want to abolish it all – but they are more likely to regard it with suspicion and something that should be kept under review. The support that they have shown in recent years for the minimum wage has been a remarkable turnaround and is more than a little out of character. Long-term, a Conservative government is going to be open to the argument that employment law is a burden on business and the Government’s job is to lighten the load.

It is important to understand that they could do that even while complying with EU standards. There are huge areas of employment law that are nothing to do with the EU at all. The National Minimum Wage, for example is an entirely domestic matter as is the law of unfair dismissal and redundancy. Discrimination law, on the other hand, owes a lot to the EU. Sceptics often point out that the Equal Pay Act predated our membership of the Common Market and that Barbara Castle, who oversaw the introduction of the Act in 1970 was opposed to us joining. But while the Equal pay Act may be have originally been made in Dagenham, much of the law as it applies today was made in Luxembourg. The concept of an equal value claim, the idea of a pay difference being ‘tainted’ by indirect discrimination and the increase in potential back-pay from two years to six years all came from Europe. We should also remember that without rulings from the ECJ there would have been no protection against pregnancy discrimination or discrimination based on gender reassignment. The EU Equality Directive led to the outlawing of discrimination based on religion and belief and on the grounds of sexual orientation – and also the abolition of the small business exception in cases of disability discrimination. Without the EU our discrimination law might look very different.

I don’t believe for a moment that a UK Government would repeal discrimination law if it were no longer bound by EU law –  but it might be tempted to undermine it in places. Back in 2011 there was a serious push made by the coalition government to find some way of capping compensation in discrimination cases. In the end EU law proved to be too much of a barrier and the idea was dropped.

It is simply undeniable that workers’ rights are stronger as a result of our membership of the EU. So I’ve always been slightly irritated by the way in which Brexiters on the left (Lexiters) tend to play down the role that the EU has played in the development of UK employment law.  In last week’s Guardian, economics editor Larry Elliot issued a broadside against the EU’s record on workers rights. Much of his focus was on trade unions and industrial action – and for many on the left, this is where their suspicion of the EU as a capitalist conspiracy comes in. The article quotes the case of International Transport Workers Federation v Viking Line ABP in which the ECJ held that a union’s right to strike (which it acknowledged) did could not be used to prevent a shipping company from exercising its rights under the EU treaty to re-flag a ship from Finland to Estonia. The case needs to be read alongside Laval v Svanska (I think that Larry Elliot has possibly merged the two cases in his mind) which involved action aimed at a contractor using workers who were posted to Sweden from Latvia. The ECJ held that the right of the Latvian company to establish itself in Sweden overrode the right of Swedish workers to take industrial action aimed forcing the Latvian company to adopt Swedish terms and conditions.

These are both complicated cases and I’ve probably oversimplified what the ECJ said (check for corrections in the comments below). But it is worth noting that in neither case was the industrial action being taken by the workers whose terms and conditions were the issue. The industrial action involved in each case would have been unlawful secondary action if it had taken place in the UK and there is no suggestion from the ECJ that either the Estonian or Latvian workers would have been prevented from taking industrial action to improve their own pay.

But even if you are critical of the ECJ’s approach in these cases, I don’t see that it justifies regarding EU law as something that actually hampers workers’ rights. The crux, of course, comes in Larry Elliot’s final paragraph:

In consequence, the only sure way to advance workers’ rights is to elect a government pledged to full employment and collective bargaining. The notion that only Brussels stands in the way of a barrage of deregulation betrays not just a misunderstanding of the way the EU operates but also a deep and irrational pessimism on the left, a belief that the Conservatives will be in power for ever no matter what they do. The left doesn’t need the EU to fight its battles. What it needs is to make the case for better working conditions and win over a public sick of a labour market loaded in favour of employers. With a bit of self-confidence it shouldn’t be that difficult.

Well yes. If we elect a majority Labour Government under Jeremy Corbyn then we certainly don’t need to worry about the deregulation of employment law. I suspect however that making that happen will take more than ‘a bit of self-confidence’. We should at least give house room to the idea that Boris Johnson might win the next election. We shall see then – and in the years that follow – what his commitment to the ‘highest possible standards’ means when it comes to employment law.

Update: for a rather more authoritative critique of Larry Elliot’s article (very much from a left wing perspective) see N Contouris and KD Ewing, ‘Don’t be fooled – workers’ rights will suffer outside the EU,’


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About Darren Newman

Employment law consultant, trainer, writer and anorak
This entry was posted in BREXIT, Equal pay, Equality Act, EU law, Uncategorized and tagged , , . Bookmark the permalink.

2 Responses to Workers’ Rights and the EU

  1. Simon Jones says:

    I’m sure that in strictly employment terms the Conservative commitment to the minimum wage does seem at odds with much of their other rhetoric on employment regulation. But if looked at in the broader picture it does make sense. The Cameron/Osborne government was committed to reducing the deficit above all else. A minimum wage increase potentially reduces the amount to be paid out by the state in tax credits and other benefits*, (and possibly making more people pay income tax) while also giving the party in power a very positive message to the electorate. It would be difficult politically for any government now to campaign on “we’re going to reduce the minimum wage”.

    (*I’m not clued up enough on government finances to say whether in practice it actually did)

  2. Stephen Levinson says:

    Confidence that a Labour Government would be effective in protecting employment rights needs qualification. Consider the history of the Equality Act promised at the outset of Blairism. In the event it only passed on the expiration of that era with literally hundreds of amendments going through on the nod. So much for reliability and quality.

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