Enforceability of Workers’ Rights after Brexit

Rebecca Zahn

Brexit and Rights Engagement Network

Brexit and Rights Engagement Network

In the run-up to the Brexit referendum, workers’ rights were invoked repeatedly by both sides of the campaign, as either a reason to back or oppose a British exit from the EU. Following the referendum, the debate over workers’ rights and their continuing protection once the UK leaves the EU has been reignited. In her Lancaster House speech UK Prime Minister Theresa May appeared to guarantee the current EU-derived workers’ rights:

We will ensure that workers’ rights are fully protected and maintained. Indeed, under my leadership, not only will the Government protect the rights of workers set out in European legislation, we will build on them.

Enforceability of Workers’ Rights after Brexit
© 2017 European Union

However, a number of government ministers have repeatedly suggested that legislation such as the Working Time Regulations may be subject to amendment or repeal post-Brexit, with then-Foreign Secretary Boris Johnson describing workers’ rights coming from the EU as ‘back-breaking’.

Although the EU has had limited competence in the employment sphere, legislation adopted by the Union has bestowed a number of individual – including substantial equality and health and safety rights – and collective employment rights on workers in the UK. This legislation has led to the establishment of a floor of social rights which limits the UK Government’s legislative capabilities.

In addition, EU law provides guarantees for the protection and enforcement of employment rights and EU law general principles have been used by the Court of Justice of the European Union (CJEU) to progressively widen the scope of protections and rights granted to workers under EU law. The CJEU’s case law can be contrasted with the approach of UK courts, which have tended to give a narrow interpretation of employment rights.

EU-derived employment laws therefore cover a patchwork of rights in the UK. Although it is difficult to predict what would have happened if the UK had never joined the EU, it is likely that some of these rights would have been enacted regardless of the country’s EU membership and, in some instances, the UK has gone further than required under EU law. In other cases, EU rules have introduced rights into UK employment law which sit uneasily with the British system of industrial relations and their effect has therefore been limited. Yet all of this does not negate the largely positive effect that EU membership has had on UK employment law.

Despite the government’s assurances, question marks remain over the enforceability of EU-derived workers’ rights post-Brexit. EU-derived employment laws are underpinned by a framework of rules, developed and enforced by the CJEU and the European Commission, which gives effect to them. EU law takes primacy over national law and operates as a limitation on the UK Parliament’s sovereign powers.

Domestic courts must give direct effect to those rights which are sufficiently clear and have an obligation to interpret national law in accordance with EU law. Infringement proceedings can be brought against the UK Government in cases of non-compliance with EU law and the CJEU can be asked to rule on questions of interpretation of EU law through the preliminary rulings procedure. Finally, EU law provisions (such as Article 19 TEU) require Member States to provide effective procedures and remedies for the enforcement of employment rights. These enforcement safeguards will fall away once the UK leaves the EU.

Are there any alternatives for enforcement of EU-derived employment rights post-Brexit?

Much depends on the future relationship between the EU and the UK. Potential options that have been discussed include participation in the European Economic Area (EEA) and/or the European Free Trade Association (EFTA), or a series of bilateral deals with the EU. Should the UK negotiate participation in the EEA, then most EU laws on workers’ rights would continue to apply and future EU laws in this area would need to be implemented by the UK government.

The EFTA Surveillance Authority (ESA) ensures that the EEA EFTA States fulfil their obligations under the EEA Agreement. There is close contact and cooperation between the European Commission and the EFTA Surveillance Authority to ensure uniform surveillance and application of EEA law throughout the EEA. The EFTA Court deals with infringement actions brought against an EEA EFTA State with regard to the implementation, application or interpretation of EEA law.

The EFTA Court gives advisory opinions to courts in the EEA EFTA States on the interpretation of EEA rules, and is competent for the settlement of disputes between two or more EEA EFTA States. It also hears appeals concerning decisions taken by ESA. The EFTA Court has not recognised the principles of direct effect and primacy, and there is no written obligation on the courts of last resort to make a reference. Nonetheless, the case law of the CJEU and EFTA Court has largely developed in a homogeneous way and EFTA States have a high rate of compliance with EEA law.

The ‘bilateral’ option could take one of a number of different forms. Closest to the status quo under this category would be a ‘Swiss-style’ agreement under which it is likely that the UK will continue to have to abide by EU employment laws, so as to prevent distortions of competition. There would not however be the same type of remedies or state accountability checks that the EU offers to individuals and businesses, such as access to the CJEU.

In the case of a ‘hard’ Brexit where the UK leaves the Single Market and the Customs Union, and negotiates a UK-EU trade deal, we may see some reference included to labour standards. The European Parliament has already made it clear that any future agreement between the UK and the EU should be conditional on continued adherence to EU social legislation and policies. If existing EU trade agreements are to serve as a template for a future EU-UK post-Brexit relationship, then it is probable that a labour clause may be inserted.

The majority of trade agreements negotiated by the EU in recent years have included an obligation on the parties to cooperate on social issues and to abide by core labour standards and other International Labour Organization (ILO) instruments. These have involved providing for mechanisms for implementation and cooperation, with due regard to stakeholder involvement (such as trade unions).

They have also included a commitment to no dilution of domestic labour protection for the purpose of attracting investment or increasing trade. However, the EU has taken a soft law approach to enforcement of such labour clauses, and labour violations are excluded from the general dispute settlement procedures of the agreements.

Overall, EU-derived employment laws have provided a patchwork of workers’ rights in UK labour law. Most importantly, they are underpinned by a framework created by EU law which includes not only positive rights in legislation and case law, but also rights to enforcement and effective remedies which constrain government action and create a minimum floor of rights for workers. This enforcement framework will fall away once the UK leaves the EU, and it is unlikely to be replicated.

Rebecca ZahnRebecca Zahn
University of Strathclyde

Dr Rebecca Zahn is Senior Lecturer in Law at the University of Strathclyde. She researches in the field of labour law (national, European and comparative), with a particular focus on collective labour law. She is on the board of the Scottish Universities Legal Network on Europe.

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