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Tue, 31 March 2020

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No bonfire of labour laws following a Brexit vote

No bonfire of labour laws following a Brexit vote

University of Exeter

4 min read Member content

Exeter University Business School's Senior Lecturer, Stephen Taylor, writes that 19,000 EU regulations affecting workers' rights cannot be repealed - in the event of a Leave vote - until any future government chooses to do so.

As the date of the EU referendum gets closer and opinion polls continue to give neither side a clear advantage, the sound bites, claims and counter-claims emanating from the rival campaigns are becoming increasingly shrill, simplistic, exaggerated and often seriously misleading.

Over the last few days a renewed attempt has been made by Remain campaigners on the left of the political spectrum to argue that Brexit will put ‘hard-won worker’s rights’ at risk of being ‘dismantled’ or ‘negotiated away’ by Conservative government ministers suddenly ‘presented with an unrestricted and unchecked opportunity’ to attack them.

This claim, like so many others is highly questionable. The truth is that a vote for Brexit would be very unlikely in practice to lead to any major reform of employment regulation in the UK and no significant reduction in workers’ existing rights for a long time to come. A Brexit could even strengthen existing employment regulation.

The majority of existing employment rights do not have an EU origin and do not form a part of any current EU treaties. These include minimum wages, unfair dismissal rights, rules on what can and cannot be deducted from wages, the right to join or not to join trade unions, whistle-blowers’ rights, compulsory union recognition arrangements and the whole panoply of rights that come to us through the law of contract.

Most employment rights which are covered in the EU treaties existed in the UK prior to their adoption by the EU. These include equal pay law, sex and race discrimination, disability discrimination, paid maternity leave and the lion’s share of health and safety law. Most are long-established and survived Conservative governments of all shades prior to them being ‘guaranteed’ by the EU’s justice system. Plenty were originally initiated by Conservative ministers and subsequently adopted across the EU.

The current Conservative government, as well as the previous coalition government, has shown a propensity to extend employment regulation in a variety of ways. It is simply not the case that Tories always seek to limit workers’ rights or diminish them significantly. Their approach has generally been much more pragmatic rather than ideological. This reality may not fit neatly with the opposition’s preferred narrative, but the truth is more complex and nuanced than is allowed for by political slogans.     

So what would change in the foreseeable future following Brexit? First, elements of the working time regulations might well be amended. In truth though these already operate to a pretty limited extent in the UK thanks to opt-outs and court judgements in areas such as rolled-up holiday pay. The requirement that statutory holiday entitlement accrues during periods of sickness could well be a target for repeal, but it is hard to see any of the major headline working time rights being abolished. Some agency workers’ rights might also be vulnerable and there is scope for significant simplification of the law in areas such as data protection and transfers of undertakings. In other respects continuity is a far more likely upshot than change.

It is plausible to argue that further pushes towards harmonisation of labour law may well resume in the future, perhaps in areas such as dismissal law, training obligations and the creation of a pan-EU minimum wage. Indeed, without the restraining presence of the UK in the Council of Ministers, we can reasonably anticipate an acceleration of such proposals at EU level following Brexit. The big question is then whether or not these further rights would have to apply in the UK in any event as part of the terms of a post-Brexit trade deal?

The departure of the UK from the European Union would over time allow future governments to repeal or amend many of the 19,000 or so regulations with an EU origin that are currently estimated to be sitting on our statute books. But until they choose to do so, these will all remain in force. Anyone who is keenly anticipating a big bonfire of labour law following a Brexit vote is going to be very disappointed.

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