The key words in the recent White Paper,Legislating for the United Kingdom’s Withdrawal from the European Union, are ‘certainty’ and ‘clarity’ in the interests of a ‘smooth and orderly Brexit’, repeated in the forewords and the text. To that end, the envisaged Great Repeal Bill (GRB) will initially convert the existing acquis of EU law into domestic law, including directly effective EU laws, such as Article 157 of the TFEU on equal pay. Also in order ‘to maximise certainty’ the meaning of EU-derived law will be determined ‘by reference to’ – note the vague words – the case law of the Court of Justice (ECJ) existing on the date of Brexit. This means, the White Paper happily explains in a user-friendly example in a shaded box, that workers’ rights will ‘continue to be available’ after Brexit, giving ‘certainty to service providers and users, as well as employees and employers’. In this way the GRB will apparently deliver on the Prime Minister’s promise in October last year that workers’ rights ‘will continue to be guaranteed in law’ post-Brexit.
Despite being thin on the detail of the GRB, so far all appears so good. But scratch the surface and things are not so simple underneath. 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 →