Repeal risks

Brexit should bring urgency to finding new models of employment relations, writes Nita Clarke

In 2016, as parliament debates the right to debate the terms of our withdrawal from the European Union, many British workers wait anxiously for reassurance that their interests are not going to be undermined. Yet the environment and challenges that workers face today is already miles away from those which they faced when the United Kingdom first joined the European Community in 1972.

Automation, big data and artificial intelligence threaten to transform the workplace, and new communications technology has allowed opportunities for alternative working arrangements to multiply. Home working rates have increased by more than a fifth over the past decade. Self-employment now makes up a larger share of the UK workforce than ever before, accounting for most of the increase in employment since 2008. Part-time work too has risen – to a record high of 28 per cent in 2012, from which it has hardly fallen and is today among the highest in the OECD. Trade union membership, meanwhile, has collapsed to half of its 1980 peak. To deal with these challenges, brave and innovative thinking about employment relations and workers’ rights is going to be needed.

As it stands, the legal foundation of many of the workplace rights enjoyed today – EU law – is currently in limbo. While no plans have been outlined as yet regarding the repeal of EU employment rights, there is certainly an appetite in some parts of the Conservative party to do away with what is seen as ‘red tape’. Liam Fox, the new international trade secretary, has been a firm past advocate of ‘deregulating the labour market’, though David Davis, the secretary of state for exiting the EU, has put on record that he is not inclined to support such moves. Some fundamental rights, certainly, ought to be beyond doubt – it is hard to imagine the government repealing those workplace protections which predate the UK joining the EU, such as protection against discrimination or equal pay guarantees.

Other areas, such as the agency workers regulations or transfer of undertakings (protection of employment) regulations, however, might be much less safe. Arising directly from EU law these rights could be automatically lost during Brexit unless explicitly protected. According to one legal opinion, ‘If the Government simply repealed the European Communities Act, those regulations passed under it like TUPE would probably fall away. In contrast, the freestanding acts of Parliament, such as the Equality Act, would remain in force.’

The government has attempted to offer greater certainty in this area through the promise of a great repeal bill which would enshrine all regulations passed under the European Communities Act directly into UK law. However, even if the entire corpus of EU employment regulations were successfully transposed into UK law in this way, as currently proposed they would only be retained in the form of secondary legislation – open to simple repeal by this or any future government on a whim, without the need for an act of parliament. Stated plainly, this is not the level of reassurance and certainty that UK workers are looking for.

Adding to the confusion is the uncertainty over the applicability of EU case law and European court of justice rulings in UK law after the UK has left the EU, in relation to those rights that we do choose to retain. The prime minister has been clear that she has no intention of ‘leaving only to return to the jurisdiction of the European court of justice’, so it will be up to UK courts to decide how to interpret and whether to retain the jurisprudence of previous ECJ rulings.

For these reasons if nothing else, the government and parliament will need to give proper thought to what they want the employment rights landscape to look like after Brexit, rather than simply assuming that nothing will change. The workers’ rights (maintenance of EU standards) bill being brought forward by member of parliament Melanie Onn is one commendable attempt to try and take the initiative and inject some life into this debate, but we need to see Conservative as well as Labour MPs giving more attention to this important aspect of Brexit. Even if they might not agree on the detail of what the best employment regulations are going to be for the UK in the years ahead, much better to have that debate openly in the House of Commons than to rely on government ministers doing the right thing through secondary legislation while also being distracted by 1,001 other areas of Brexit to worry about at the same time.

One of the most tipped rules to be scrapped given the first opportunity are the agency workers regulations. Leaving agency workers completely unregulated and with no rights whatsoever would, however, be a serious mistake,’ given current trends. With the rise of self-employment and the nascent ‘gig economy’, atypical workers form a rapidly growing part of the UK workforce and the government needs to be paying more, not less, attention to how these workers are treated.

Similarly if the information and consultation of employees regulations are repealed it is vital that the government take other steps to ensure that employee voice in the UK is still supported and broadened rather than compromised. Recent discussion of ways to put employee representatives on company boards would be one potential avenue, one that we can only hope is genuinely realised during the next few years.

At the same time as considering the importance of employment rights, however, it should not be forgotten that Brexit will have other effects on the UK workforce. In the short term, at least, there is a broad consensus that the uncertainty of the next couple of years will put considerable economic pressure on many UK businesses. This in turn could lead to an acceleration in recent trends – an increased push towards the use of atypical workers as firms seek to reduce overheads and increase their flexibility to deal with an uncertain future. Brexit should therefore not distract attention from, but rather bring a new urgency to, the search for new models of employment relations, better suited to this workforce of the future.

Brexit is likely not to be the immediate threat to most employment rights that some have feared but should be seen as an opportunity to define a new model of workers’ rights that are fit for the 21st century workplace and which take proper consideration of the range of new patterns of non-traditional working and the growth of new technology driving the ‘fourth industrial revolution’. Given the many competing demands for time, attention and resources that EU disentanglement will place on UK policy-makers for several years to come, the biggest danger of all may be that this opportunity to look properly at employment rights is lost at the bottom of a towering government intray. It would be a tragedy indeed if initiatives such as looking at worker representation on boards were to fall by the wayside simply because of Brexit’s demands on the time and resources of ministers and civil servants.

In the coming years, emerging trends threaten to completely revolutionise the structure and habits of work, for better or worse. It is in no one’s interests for our models of employment relations to fall further behind this curve. To allow Brexit to turn the clock back on employment rights when we need so urgently to be looking to the future would be the worst outcome of all.

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Nita Clarke is director of the IPA. She tweets at @nita_clarke

Read the joint Progress-IPA pamphlet ‘Uncertain times: the need for new thinking on workplace relations in Britain’

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Comments: 1...

  1. On November 14, 2016 at 12:48 pm Alf responded with... #

    Good to see the party’s right-wing Tory-lite rebels supporting workers’ rights. Time now for the repeal of all of Thatcher’s anti-union laws.

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