Government denials of reports that it is planning to lower the standards of workers’ rights should not be believed. It’s something those who championed Brexit have been working on since before the Brexit referendum, and now the transition period is over, they have the opportunity. 

 

The denial follows a report in the Financial Times today (15 January) that a package of de-regulatory measures is being put together inside government departments, with the approval of Downing Street. The main focus (for now at least) seems to be on rights derived from the EU Working Time Directive – such as the maximum 48-hour working week, rest breaks and the inclusion of rest breaks in holiday pay calculations.

 

Kwasi Karteng’s denial for the government is as carefully worded as it is disingenuous: “We are not going to lower the standards of workers’ rights” and “The UK has the best workers’ rights in the world – going further than the EU in many areas. We want to protect and enhance workers’ rights going forward, not row back on them.”

It is a government that wants to be seen to clap outside the door of Number 10 while behind it, is looking to dismantle the rights our key workers on the front line rely on to protect them.

Richard Arthur Head of trade union law

 

Theresa May’s withdrawal agreement made reference to worker’s rights. Boris Johnson’s withdrawal agreement (i.e the legally binding agreement) said absolutely nothing about workers’ rights or social protection. The only reference in Johnson’s deal was in the non-legally binding political declaration was an empty declaration of an ‘intention’ to ‘uphold the common high standards applicable in the UK at the end of the transition period’. Weasel words promising nothing.

 

The claim that the UK has the best workers’ rights in the world, or even ‘high standards’ has always been a fallacy. It is, as noted in the FT article, typically workers in the UK who have been the beneficiaries of judgments of the Court of Justice of the European Union in the social and employment sphere, on working time, transfers of undertakings, equal pay, discrimination and maternity rights. And the reason for that is simply that, without the protection of EU law, most UK labour law standards would lag behind those in EU countries. Examples of where UK labour law goes beyond EU standards are very few and far between, and do not arise from any benevolent intention to exceed EU standards viewed as insufficient. 

 

In terms of trade union rights, the UK has one of the most restrictive regimes in the world. The UK’s industrial action framework, which includes measures such as excessively complicated balloting and notice provisions, has been condemned by international supervisory bodies such as the ILO’s Committee of Experts and Committee on Freedom of Association and the EU Social Rights Committee. 

 

If the government was committed to preserve workers’ rights and social protections at the end of the transition period, it would have negotiated effective and enforceable non-regression provisions of individual rights and protections with the EU. It would need to be related to individual rights as it is notoriously easy to present there having been no material reduction in protections overall while there has in fact been a diminution in an individual right. It is something of which the EU itself is aware and that is has sought to restrict with limitations on non-regression ‘when implementing EU law’.

 

The so-called level playing field provisions Boris Johnson negotiated in the EU-UK Trade and Cooperation Agreement (EU-UK TCA) are designed to enable the government to dismantle EU workers’ rights at will. In fact, the agreement reached with the EU specifically and deliberately ‘affirms’ the rights of the UK and EU to set their ‘policies and priorities’ in the field of labour and social standards.  

 

The provisions on labour and social standards may come under the heading of ‘Non-regression from levels of protection’ but they are not expressed to operate at the level of individual rights and they create no legally binding commitments enforceable by individuals.

 

In any event ‘rebalancing measures’ allowed for within the EU-UK TCA may only be imposed where a change by either side where ‘material impacts on trade and investment’ arise.

 

In not denying that a report exists in government departments which will provide for changes to the rules on the maximum 48-hour week, rest breaks, the calculation of holiday pay and no doubt other employment protection measures derived from EU law, the government is leaving the way clear for a ‘no material reduction overall’ justification. 

 

History shows us what Conservative governments do to employment rights when left unchecked. Recent examples in the various administrations of Conservative rule since 2010 include the introduction of Employment Tribunal fees (a move ruled unlawful by the Supreme Court), increasing the qualifying period in unfair dismissal claims from one year to two years, imposing a cap on unfair dismissal compensation of one year’s pay and the Trade Union Act 2016 imposing restrictions on trade unions.

 

The government will doubtless seek to present its plans concerning EU workers’ rights as part of an economic recovery from the coronavirus (COVID-19) crisis. Put aside the political convenience of that presentation for its ideologically driven ambitions and it is worth considering the irony that these are the very rights which our frontline workers have relied on to protect them during the crisis. The protections under threat include protection from excessive working hours, breaks from work and how those workers get paid if they are able to take leave, as well as easily being extended to the provision of adequate PPE and equal pay.

 

This is a government which encourages you to clap for NHS workers it refuses to give a proper pay rise to. It is a government that wants to be seen to clap outside the door of Number 10 while behind it, is looking to dismantle the rights our key workers on the front line rely on to protect them.