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Mrs May’s promise on workers’ rights will not survive Brexit

Adam Lambert

As the UK’s marriage to the EU has reached the decree nisi stage, this article includes updates on the workers’ rights article from Adam Lambert, employment, Partner at Kingsley Napley LLP, which features in issue 151 of theHRDIRECTOR.

We have been told The Great Repeal Bill will preserve the existing legal position with EU-derived laws. And Mrs May has promised specifically that workers’ rights are to be preserved. However, given one of the aims of Brexit is for our Parliament to have the power to amend or repeal our own laws in future and given the UK courts predilection to interpret laws differently to the EU, will that promise have lasting effect? No is my view. I don’t say this out of a lack of trust for our Prime Minister, or because walking hand in hand with the USA will inevitably move us towards a hire and fire employment-at-will labour market.

However, the evidence for the sea change ahead is already there in the fine print. The Brexit White Paper published in early February warned that employment law will adapt to a “changing labour market” and “new economic model”. That hardly instils confidence in a forever promise. And if that hint was not enough, there is further ground for doubt. Possibly the biggest impact on workers’ rights will come from this significant sentence in the same White Paper: “We will bring an end to the jurisdiction of the CJEU [European Court of Justice] in the UK.”

The impact of the CJEU in the employment field has been, and continues to be, enormous. By way of an example, there are tens if not hundreds of thousands of cases on hold in our employment tribunal system because the CJEU ruled on how holiday pay should be calculated, changing many years of accepted practice in the UK .The chronology tends to be as follows: the EU passes a law; the UK implements it; the UK courts follow the UK law; the CJEU then interprets the EU law in a way that had not been anticipated by the UK Parliament or courts; the UK courts then have to change their interpretation, including rewriting the legislation, in order to interpret the CJEU decision. And because it is interpreting laws already in place, it has retrospective effect. A second and shorter White Paper, published the day after notice was given under Article 50, gives more clarity to the plans for ending the jurisdiction of the CJEU. The intention is for CJEU decisions which are before Brexit will have an equivalent status to the UK Supreme Court, so will remain binding on UK courts unless the law is changed by Parliament.

But that does mean that UK workers will not have the benefit of post-Brexit CJEU decisions. Almost without exception, the CJEU interpretation has been more worker-friendly than that of the UK courts. The CJEU has been an advocate, enforcer and author of growing EU social policy. Take away the jurisdiction of the CJEU and it is inevitable UK workers’ rights will fall behind EU workers’ rights without the Government actually having to do a thing.  Mrs May’s promise will not hold on that basis. Yes we still have two years to go – possibly more. After the earlier White Paper was published, the EU Parliament’s chief negotiator said that transitional arrangements for Brexit will delay the UK ceasing to be bound by the CJEU until much later than 2019. A recurring theme in comments from EU officials is that the UK will not be dictating the terms of its post-Brexit world if it was a favourable trade deal.

My prediction remains that from Brexit UK businesses will begin to see the pendulum swinging back in their favour when it comes to workers’ rights, whatever the current political rhetoric. And that means that concerns about Brexit being aired by British workers and unions may turn out to be justified.