Protecting Workers’ Rights Post Brexit

Posted in Employment and labour

On 6 March 2019, the UK Government issued further details regarding the protection of workers’ rights after the UK leaves the EU.

Currently the EU sets minimum requirements in many areas of workers’ rights. UK law has, in certain circumstances, chose to exceed these rights: for example, UK legislation provides for up to 39 weeks of statutory maternity pay, compared with the 14 weeks required by the EU. EU rights will be transposed into UK legislation under the terms of the European Union (Withdrawal) Act 2018 (the Withdrawal Act). However, at the end of any agreed transition period the framework of workers’ rights will no longer be provided by the EU and the UK would be free to amend or adopt rights. The Government has previously indicated that it is absolutely committed to protecting and enhancing the protections workers enjoy. However, some MPs and employee bodies have called for a parliamentary mechanism to be established to monitor and implement the Government’s assurances.

The Government has therefore published draft clauses for inclusion in the EU (Withdrawal Agreement) Bill. The clauses have two main features:

  • A statement of “non-regression” in Acts of Parliament: This would be a new statutory duty placed on any minister introducing a Bill which affects employment or workplace health and safety. Before the Second Reading of any such Bill, the Minister must make a statement of non-regression indicating that the proposals in the UK legislation will not diminish or undermine pre-Brexit workers’ rights. If this statement cannot be given, the Minister must indicate that the Government nevertheless wished to proceed. Before making the statement, the Minister must consult with worker and employer representatives (subject to certain exclusions, for example, for reasons of urgency).
  • Reports on new EU workers’ rights: The second aspect of the draft clauses concerns future EU legislation. Under this, Parliament will be given the opportunity, at least every six months, to consider any changes to EU workers’ rights, and health and safety standards in the workplace. This will be reported to Parliament through a document, produced by the Secretary of State following consultation with employers and trade unions. The report should state either that no new EU workers’ rights have been published by the EU in the relevant reporting period; or that one or more new EU workers’ rights have been published. In respect of each new EU right the Government should set out whether the UK laws already confer that right on workers, or, if not, the intended course of action – whether to legislate in accordance with EU law; to give effect to the right in some different manner; or not to legislate and the rationale for such decision.

The Government proposals also include a step to strengthen the enforcement of employment rights by the introduction of a new single enforcement body to protect vulnerable and agency workers. This body would bring together the enforcement functions of the Gangmasters and Labour Abuse Authority, HMRC and the Employment Agency Standards Inspectorate.

The TUC has stated that these measures would in no way compensate for the loss of protections that currently exist and suggest that a government could, in any event pass amending legislation to reduce workers’ rights. There is also no method to contest the Government’s “no regression” statement. Further, there is no requirement on the Government to accept the recommendations from the parties to the consultation process. Employers’ bodies however have broadly welcomed the approach.

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