There has been considerable concern expressed regarding the employment rights that British workers would lose by virtue of Brexit. But this is not straightforwardly the case in respect of collective labour rights. Although European Union (EU) directives offer some protection of collective labour rights, national trade union freedoms regarding collective action have arguably been undermined (rather than bolstered) by EU hard and soft law. This means that the worker and trade union case for resisting Brexit remains complicated. While the over-arching aim is to stay in the EU for the sake of many individual and some collective worker entitlements, reform remains on the agenda.
Significant collective labour rights could be lost should Brexit occur and the UK remove itself from the established social pillar of legislation established under EU law. EU directives protect information and consultation rights concerning redundancies and transfers of undertakings, as well as provide for collective representation through European works councils and in European companies. Further, collective agreements may shape the domestic application of EU norms such as working time or provide the basis for entitlements at work such as those for posted workers or workers taking parental leave. However, this is not the only possible narrative regarding collective labour rights in the EU. Continue reading →
The Court of Appeal has delivered an important judgment in R v Valujevs  3 WLR 109, on the scope of fraud by abuse of position under section 4 of the Fraud Act 2006 (on which see J. Collins, ‘Fraud by Abuse of Position and Unlicensed Gangmasters’ (2016) 79 Modern Law Review 354). The importance of ensuring legal certainty in drafting a general fraud offence was emphasized when the Fraud Bill was debated in the House of Commons a decade ago (Hansard, HC 12 June 2006, col 549). Dominic Grieve MP’s concerns that fraud by abuse of position was ‘too widely drafted’, and would lead to ‘a catch-all provision that will be a nightmare of judicial interpretation’ (Standing Committee B, 20 June 2006, col 25) remain relevant to what has resulted in sections 1 and 4 of the Fraud Act 2006. Does R v Valujevs shed new light on the principled operation of the offence? And is the Court of Appeal’s interpretation in line with concerns at the Committee stage to safeguard vulnerable categories of persons (Standing Committee B, 20 June 2006, col 26)? Continue reading →
It is now pretty well-known that most of the employment rights in the UK are guaranteed by EU law—the principal exceptions are unfair dismissal and the national minimum wage —as I explained in a recent advice for the TUC. UK legislation on race discrimination, sex discrimination, equal pay and disability discrimination may have pre-dated EU Directives in these areas, but EU law led to protection against other forms of discrimination, such as detrimental treatment owing to age, sexual orientation and religion and belief. Over the years EU law has greatly supplemented or overwritten the domestic regime, almost always in favour of workers’ rights – removing limits on damages, recognising that pregnancy discrimination did not need a comparator, changing rules on the burden of proof, allowing equal pay claims for work of equal value, protecting against harassment and post-employment victimisation. I could go on.
Now extending far beyond discrimination, the EU-guaranteed rights include almost all the working time protections, including paid annual leave and limits on working hours; the protection of agency, fixed-term and part-time workers; rights on the transfers of an undertaking (extremely significant in a world dominated by out-sourcing); many rights to information and collective consultation; the most important health and safety regulations; the right to a written statement of terms of employment; protections in insolvency derived from the EU Insolvency Directive, which led to important extensions to the state guarantee of pension benefits and protection of other claims where the employer is insolvent (no doubt to be in play in relation to British Home Stores); and EU data protection law, the driving force behind the Information Commissioner’s Employment Practices Code, providing some controls over the monitoring and surveillance of workers. Continue reading →