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Brexit and workers' rights
Abstract
The labour law of the UK and of other Member States is, and will become, more truly European than appears from the formal imprint of EC labour law. It is European rather by reflecting the cumulative experience of national labour laws, filtered through the prism of the EC institutions and refined in the crucible of the developing European polity. The tendency towards convergence of UK labour law with the labour laws of other Member States of the EC is driven in the main by the institutional pressures of EC membership, and, to a lesser extent, is the consequence of the workings of the international economy and, though less significant, a single European labour market. The dynamic of this convergence process is complex and its results are far from complete.
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Author and article information
Notes
European Council, 'European Council (Article 50) Guidelines for Brexit Negotiations’, (29 April 2017), para 5.
Department for Exiting the European Union, 'Legislating for the United Kingdom's withdrawal from the European Union’ (Cm 9446, March 2017), p 14.
European Council, 'European Council (Article 50) Guidelines for Brexit Negotiations’ (29 April, 2017) para 20 (Emphasis added).
See EEA Treaty, Part IV.
Notable exceptions are the two Equal Treatment instruments of 2000, Directive 2000/43 and 2000/78, excluded by virtue of their historical legal base not being related to the functioning of the single market. By the same token, while Norway is bound by Article 28 of the Agreement to EU rules on free movement of persons, including Directive 2004/38, all reference to the concept of 'union citizenship’ are carefully expunged by Annex V to the Agreement.
For full details of FTAs, see the the WTO Regional Trade Agreements database available online. At the time of writing the EU has concluded some 42 Trade Agreements, that apply and will continue to apply to the UK at least until the Brexit date. In preparation for Brexit the UK has negotiated 12 such agreements that essentially replicate the ones signed by the EU, but none of which can come into force while the UK remains a member of the EU.
European Commission, ‘Guide to the Comprehensive Economic and Trade Agreement (CETA)‘ (European Union, 2017), p 3.
A Beecroft, Report on Employment Law (2011), p. 4.
TEU, Article 3(3).
Ibid.
TFEU, Article 9.
Ibid., Article 119(1).
We are of course alluding to the infamous case law developed by the ECJ and often referred to as the Viking and Laval ‘quartet’ for which a highly commendable and authoritative analysis can be found in J Malmberg, ‘The Impact of the ECJ Judgments on Viking, Laval, Rüffert, and Luxembourg on the Practice of Collective Bargaining and the Effectiveness of Collective Action’, European Parliament, 2010. Viking and Laval are further discussed below.
Case152/84, Marshall v Southampton and South West Hampshire Area Health Authority [1986] ECR 723.
Case 14/83, Von Colson [1984] ECR 1891; Case C106/89, Marleasing [1990] ERC I-4135.
Case C-6/90, Francovich v Italy [1991] ECR I-3843.
Case 26/62, Van Gend & Loos [1963] ECR 1, para 3.
Case 6/64, Costa v ENEL [1964] ECR 585; and Case 11/70, Internationale Handelsgesellschaft mbH [1970] ECR 1125, respectively.
R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3.
R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5.
SI 2019 No. 859.
However, the European Union (Withdrawal) Act 2018 provides that 'a court or tribunal may have regard to anything done on or after exit day by the European Court, another EU entity or the EU so far as it is relevant to any matter before the court or tribunal’ (s 6).
Case 43-75, Defrenne v Sabena [1976] ECR -00455; Case 152/84, Marshall v Southampton and South-West Hampshire Area Health Authority [1986] ECR-00723.
HM Government, 'Review of the Balance of Competences between the United Kingdom and the European Union Social and Employment Policy’ (2014), p. 28, note 8. The total figure excluding repealed directives and directives repealed by recast/ codified directives.
This compares with the influence exerted on domestic environmental or agricultural regulation, where 'over 1,100 core pieces of directly applicable EU legislation and national implementing legislation have been identified as Defra-owned’, see House of Lords, European Union Committee, HL Paper 109 (2016–2017), p. 10.
For instance, see the Race Relations Act 1965 or the Equal Pay Act 1970, and more recently, the Disability Discrimination Act 1995.
House of Commons, Women and Equalities Committee, Oral evidence by Professors C Barnard and A McColgan, HC 657 (2015–2016).
The main significant exception being the requirement to pay part-time workers on a prorata and equal treatment basis with comparable full-time workers, as required post R v Secretary of State for Employment, ex parte EOC [1394] IRLR 493 (Divisional Court).
[2012] 2 CMLR 25.
SI 1998 No 1833.
TUC, 'UK Employment Rights and the EU – Assessment of the Impact of Membership of the European Union on Employment Rights in the UK’ (2016), p. 5.
CBI, 'CBI Response to the Balance of Competence Call for Evidence: Social and Employment Review’ (2014), p 3.
HC Debs, 17 January 2013, col 40WS
A Beecroft, 'Report on Employment Law’ (2011), p. 13.
Ibid.
Case C-188/03, Junk Irmtraud v. Wolfgang Kühnel [2005] ECR I-885.
See in particular the Citizens' Rights Directive 2004/38/EC, and Regulation 492/2011.
O Hawkins, 'Migration Statistics’, House of Commons Library Briefing Paper, Number SN06077 (7 March 2017), p. 23.
Ibid, p 26. The report refers to 2011 and notes that UN migration statistics put the figure at 1.2 million.
European Council, 'Article 50 Guidelines for Brexit Negotiations’, (29 April, 2017).
This also applies to the so called ‘cost’ of migration. See C Vargas Silva, ‘Briefing – The Fiscal Impact of Immigration in the UK’ (Oxford Migration Observatory, 2015).
House of Lords, European Union Committee, HL Paper 72 (2016–2017), ch 2.
Ibid., para 23.
M Martinez Lucio, A Koukiadaki, and I Tavora, The Legacy of Thatcherism in European Labour Relations: The Impact of the Politics of Neo-Liberalism and Austerity on Collective Bargaining in a Fragmenting Europe (IER, 2017).
Migration Advisory Committee, EEA Migration in the UK: Final Report (September 2018).
Ibid., paras 1.39 and 1.40.
Ibid., p 17.
Daily Telegraph, 6 June 2007; TUC, 10 September 2007 (‘British’ used 24 times in the speech); and BBC News, 24 September 2007 (‘British’ used 27 times in Labour Party speech).
See The Guardian, 30 January 2009.
See The Guardian, 10 August 2019.
K Marx, 'Instructions for Delegates to the Geneva Congress’, in D Fernbach (ed), Pelican Marx Library, vol 3 (1974), p. 91.
The Guardian, 30 January 2009.
Ibid.
ACAS, Report of an Inquiry into the Circumstances Surrounding the Lindsey Oil Refinery Dispute (2009).
Ibid., para 9.
Posted Workers Directive (96/71/EC).
ACAS, Lindsey Oil Refinery Dispute Report, above, para 22.
According to an Office for National Statistics (ONS) based study, EU migrants make up more than 20% of the labour force in 18 British industries: The Guardian, 29 July 2017. In the case of agriculture the figure is just under one half.
ILO Declaration of Philadelphia (1944), Part I(a). See P O'Higgins, 'Labour Is Not a Commodity—An Irish Contribution to International Labour Law’ (1997) 26 Industrial Law Journal 225.
See Australian Government, Report of the Migrant Workers' Taskforce (2019). Available online.
ACAS, Lindsey Oil Refinery Dispute Report, above, para 14.
S Lowe, ‘Brexit and services – How deep can the UK-EU relationship go?‘ (Centre for European Reform, December 2018).
K Marx, 'Instructions for Delegates to the Geneva Congress’, above, p. 92.
Thus the adoption of the Posted Workers Enforcement Directive 2014/67/EU, and the more recent adoption of the Posted Workers Amendment Directive 2018/957 (that will come into force in July 2020) have substantially improved the legal framework that led to extremely bitter and divisive Lindsey dispute. For instance, from 2020 onwards, all the mandatory elements of remuneration (instead of the 'minimum rates of pay'), including rules on accommodation allowances, and expenses, will apply to all posted workers, and any posting longer than 12 or 18 months will have to comply with an extended set of terms and conditions of employment of the receiving Member State. Shorter postings, however, will remain a concern for systems that do not contemplate procedures for declaring collective agreements universally applicable'.
K D Ewing, J Hendy, and C Jones (eds), Rolling out the Manifesto for Labour Law (IER, 2018).
A Beecroft, 'Report on Employment Law’ (2011), p. 4.
HM Government, 'Guidance Workplace Rights if There's no Brexit Deal’, last updated 18 January 2019. Available online.
HM Government, 'Guidance - Staying in the UK for Longer Than 3 Months if There's no Brexit Deal’ (28 January 2019 - Last updated 26 February 2019). Available online. It is worth noting that, on occasion, the current government presided over by Mr Johnson has suggested bringing a hard stop to free movement on 31 October.
HM Government, 'The UK's Future Skills-Based Immigration System’ (December, 2018). Available online.
TFEU, Article 79(5).
C Morris, 'Brexit: What is the “No Deal’ WTO Option?” BBC News, 29 July 2019. Available online.
HM Government, 'Guidance - Check Temporary Rates of Customs Duty (Tariffs) on Imports After a No-Deal Brexit’ (13 March 2019 - Last updated 20 March 2019). Available online.
K D Ewing, 'The Death of Social Europe’ (2015) 26 King's Law Journal 76.
See European Commission, 'The European Pillar of Social Rights in 20 Principles’ (17 November 2017). Available online.
Ibid., Principle 5. It is also provided that 'The transition towards open-ended forms of employment shall be fostered’.
Ibid.
Ibid., Principle 6.
Formally the ‘Directive (EU) 2019/ [number pending assignment from official journal of the European Parliament and of the Council of [date pending] on the protection of persons reporting on breaches of Union law‘].
M Taylor, 'Good Work: Taylor Review of Modern Working Practices’ (2017). For example: 'We have considered a range of penalties designed to punish employers who schedule work at late notice, or offer work only to cancel it at the last minute’. However, these tend to have wider implications and would be highly complex to administer and enforce, meaning those who required additional protection may not benefit from any changes' (ibid, p 44).
HM Government, 'Good Work Plan’ (2018), p. 13.
A Klair, 'Zero-Hours Contracts are Still Rife’, 19 February 2019. Available online.
R (Miller) v Secretary of State for Exiting the EU [2017] UKSC 5, para 70.
European Union (Withdrawal) Act 2018, s 6.
Case C-55/18, Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE, 14 May 2019.
P De Koster and and C Lahaye, ‘CCOO vs Deutsche Bank (ECJ C-55/18): Another Piece of the Puzzle for Fundamental Rights Enforcement in Employment Matters?‘ (Bird & Bird, May 2019).
We are grateful to Kate Ewing for this insight.
K D Ewing, ‘Brexit Threat to Workers’ Rights’, Morning Star, 31 January 2017.
Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment) Order 2013, SI 2013 No 763.
A Beecroft, Report on Employment Law (2011), p. 16.
Evening Standard, 17 August 2012.
The Guardian, 22 August 2012.
Ibid.
Sunday Times,17 December 2017. For fuller analysis, see Huffington Post, 19 December 2017.
HC Treasury Committee, Oral Evidence, 23 March 2016, HC 499 (2015-2016).
Evening Standard, 17 August 2012.
J-C Tham and K D Ewing, 'Labour Provisions in Trade Agreements : Neo- Liberal Regulation at Work’ (2019) 16 International Organisations Law Review (forthcoming).
Trade Bill 2017-2019.
Trade Bill, Lords Amendment 17.
ILO, Committee of Experts, Conclusions (1998), and almost every two years subsequently. FTAs have not stopped the current government from bringing forward legislation that amounts to an even more egregious violation of ILO standards, and is currently controversial as a result. For a good account which attracted a lot of media coverage in Australia, see D Blackburn and C Cross, ‘Fair Work (Registered Organisations) Amendment (Ensuring Integrity) Bill 2017‘ (ICTUR, 2017).
K D Ewing and J Hendy, 'TTIP: The Elephant in the Room’, CLASSonline Blog, 5 June 2015; also same authors, 'TTIP and Labour Rights’, IER submission to the BIS Inquiry into the Transatlantic Trade and Investment Partnership' (21 January 2015).
Ewing and Hendy, 'Elephant in the Room’, ibid.
Ewing, 'The Death of Social Europe’ (2015) 26 King's Law Journal 76.
F Jaumotte and C O Buitron, 'Inequality and Labor Market Institutions’ (IMF Discussion Note, 2015); OECD, Employment Outlook 2018 (2018), esp Ch. 3 ('The Role of Collective Bargaining Systems for Good Labour Market Performance').
Case C-438/05 , International Transport Workers Federation v Viking Line ABP [2007] ECR I- 10779.
Case C-341/05, Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet [2007] ECR I- 11767.
See above.
See subsequently McGowan v Labour Court Ireland [2013] IESC 21.
For a more detailed analysis of these cases see M Bell, 'Understanding Viking and Laval: An IER Briefing Note’ (IER, 2008).
On the BALPA case and its link with Viking, see K D Ewing, ‘The Draft Monti II Regulation: An Inadequate Response to Viking and Laval‘ (IER Briefing, 2012).
Govia GTR Railway Limited v ASLEF [2016] EWCA Civ 1309.
Case C-426/11, Alemo-Herron v Parkwood Leisure Ltd, 18 July 2013.
Parkwood Leisure Limited v Alemo-Herron and others [2011] UKSC 26.
See B Veneziani, 'Article 16 – The Right to Conduct a Business’, in F Dorssemont et al (eds), The Charter of Fundamental Rights of the European Union and the Employment Relation (Hart, 2019), ch 17.
Public Finance, 6 October 2005 (‘Warwick Deal Slammed by Labour Law Expert‘). Available online.
HM Government, 'Explainer for the Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union (14 November 2018), p. 44. Available online.
European Commission, 'Notice to Stakeholders – Withdrawal of the United Kingdom and EU Rules on European Works Councils’ (13 March 2019). This would appear to be confirmed by British legislation which will prevent any new EWCs being established in the UK.
Case C-144/04, Mangold v Rudiger Helm [2005] ECR I-9981.
Ewing, ‘The Death of Social Europe’, above; and Thompsons Solicitors, ‘Note on the Labour Standards Provision of the Draft Brexit Withdrawal Agreement’ (November 2018). Available online.
M Morris, ' A Level Playing Field for Workers: The Future of Employment Rights Post-Brexit’ (IPPR, 2018). Available online.
HM Government, 'The Future Relationship between the United Kingdom and the European Union’, Cm 9503 (2018), para 123. Available online.
HM Government, 'Protecting and Enhancing Workers’ Rights After the Withdrawal from the European Union, CP 66 (2019). Available online.
K D Ewing and J Hendy, ‘No Cast Iron Guarantees on the Future of Workers’ Rights’, Morning Star, 15 February 2019.
A O'Neill, ‘Workers’ Rights, EU Law and Brexit’, 10 March 2019, para 1.4. Available online. This masterly analysis runs to 47 pages.
See M Martinez Lucio, A Koukiadaki, and I Tavora, The Legacy of Thatcherism in European Labour Relations: The Impact of the Politics of Neo-Liberalism and Austerity on Collective Bargaining in a Fragmenting Europe (IER, 2017).