In the last days before Brexit is currently scheduled to happen, Theresa May has finally acknowledged that the UK’s departure from the EU could put workers’ rights at risk. She has promised that Brexit will not lead to a reduction in workers’ rights and her government has said that when the EU adopts new employment protections, the UK parliament will be given time to discuss whether to keep pace with the EU on workers’ rights.
The danger to workers’ rights is real. Given the importance of basic employment rights, and the crucial role EU law currently plays in protecting workers, it’s extraordinary that in three years of Brexit discussion this issue has hardly received attention.
To assess May’s proposal and the risk that Brexit could produce a bonfire of workers’ rights it’s vital to know what rights the EU currently protects in the UK, and how.
The EU’s single market for goods, services and people depends on all states committing to basic protection of workers’ rights, to avoid a ‘race to the bottom’ on standards. Those protections, which have been strengthened over the years, include granting part-time and those employed through employment agencies the same rights as full-time workers, ensuring a legal limit on working hours, and a right to paid holidays, and banning discrimination against pregnant women.
It’s due to the EU that the UK introduced its first laws prohibiting discrimination on the grounds of age, religion and sexual orientation. EU law has strengthened UK law on equality, as well as itself being influenced by the UK experience in combating discrimination. The bottom line is that many of the protections for workers in the UK depend on EU law.
When the EU Charter on Fundamental Rights entered into force in 2009, many of the rights developed through EU legislation and rulings of the EU Court of Justice (ECJ), including a strong guarantee of equality, were consolidated. They became enforceable in national courts and harder to water down.
Crucial to the protection of such rights is that individuals, nongovernmental groups, and the EU Commission can take legal action to enforce them against governments, including at the EU’s Court of Justice.
Protections for part-time workers across the EU began with litigation, for example. Courts applying EU law judged that treating part-time workers worse than full-time employees was (indirect) gender discrimination, as the vast majority of part-time workers were women.
So what is at risk if and when the UK leaves the EU? On day one of Brexit it may seem that little will have changed. Many of the EU rights are already in UK law and as part of Brexit the UK parliament passed a law that it said would incorporate all EU law into UK law. But there will be nothing stopping any government in future scrapping workers’ and other rights, especially if it’s a no-deal Brexit. Some leading politicians, including the former Brexit Secretary Dominic Raab, have called for removing EU employment protections in the name of ‘deregulation’.
Moreover when it incorporated EU law the government explicitly excluded the Charter on Fundamental Rights, meaning under Brexit everyone in the UK will lose the Charter’s protection. The government also says that UK citizens should no longer be able to go to the EU’s court to enforce their rights. Therefore under Brexit as currently on offer, citizens will lose their power to enforce rights they currently have under EU law by taking the government to court.
The government’s ditching of the Charter and the protection of the EU’s court, without offering anything equivalent in return, makes it all too easy for a future government to weaken or even scrap workers’ rights.
In this light, May’s vague promise to consult parliament when the EU introduces new protections of rights is thin gruel.
If the UK government really wants to protect workers’ rights after Brexit it should retain the European Charter on Fundamental Rights in UK law. It should ensure that after Brexit, workers, unions, and organisations will have the same power to sue the government to enforce those rights as they do now. That would protect workers against politicians who argue that Britain should scrap such protections as part of a deregulation effort.
If not, workers across the UK will be at risk if a future government decides to use Brexit to build a bonfire of employment and equality rights.