Brexit Repeal Bill Upholds Workers’ Rights, but Some Changes May Lie Ahead

Brexit Repeal Bill Upholds Workers’ Rights, but Some Changes May Lie Ahead

In a major step toward Brexit, the UK government on Thursday published the “repeal bill” through which it will decouple the UK from the legal, political, and financial institutions of the EU, as well as incorporate those aspects of European law it intends to retain into domestic law. The prospect of a repeal bill had raised concerns that the legal protections UK employees enjoy, some of which are derived from EU policy, might be weakened after Britain leaves the union, but the government has insisted that employee rights will not be discarded.

In keeping with that promise, the Department for Exiting the European Union says regulations derived from the EU’s Working Time Directive and Agency Workers’ Directive will remain in place after Brexit, and that past European Court of Justice rulings pertaining to employee rights will continue to apply in the UK, Jo Faragher reports at Personnel Today:

Rachel Farr, senior lawyer in the employment, pensions and mobility group at law firm Taylor Wessing, said: “The Bill makes it clear that EU-derived UK legislation, such as TUPE 2006, will continue to apply after the exit day, whilst EU Regulations such as the General Data Protection Regulation will also remain in effect in the UK. “This confirms that companies and their HR teams should continue to think about how they will be handling employee data in compliance with the new rules.”

One area that has concerned opposition politicians, however, is the scope to use ‘Henry VIII powers’ within the bill, which allows the UK to change laws with limited parliamentary scrutiny if they find any deficiencies in EU law as it is worked into UK legislation. Furthermore, UK courts are not bound by any decisions made by the ECJ after Brexit, so could potentially ignore key employment rights decisions granted in EU countries in the future.

Most of the rights to which UK employees are entitled are well established in the country—indeed, these rights exceeds the standards set by the EU in many instances—and there is little appetite for getting rid of them among either employees or employers. A recent survey by GQ Employment Law found that only 5 percent of British companies advocated major changes to UK employment laws, while 30 percent wanted no change at all, according to Darren Isaacs at People Management. Among the 65 percent who want some changes, their desires largely center on sick leave and discrimination regulations:

When it comes to sick leave, the key sticking point is the current entitlement of long-term ill employees to accrue and roll over holiday entitlement, something employers feel is unnecessary and, frankly, unfair. At the heart of it, there is fundamental disagreement with the view of the Court of Justice of the European Union that employees who are long-term absent from the workplace still need to be able to take a paid break from their work. …

In the case of discrimination, the issue is not whether workers should have any protection at all, but that, under the current system, compensation for discrimination is uncapped. The argument is that, like unfair dismissal claims, compensation awards in discrimination should be capped because without a cap there is uncertainty as to the outcome. And with that uncertainty, companies say they are often forced into settling a claim to avoid an unknown and potentially significant exposure if they are found to be in the wrong.

Employee advocates don’t necessarily believe the government when it says rights will be upheld, however. Women’s groups, for instance, fear that protections against gender-based pay discrimination could be weakened, Bloomberg’s Laura Colby and David Hellier report:

There would be nothing to keep Britain from putting caps on gender discrimination claims or weakening the burden of proof for pay discrimination, for example. “The whole legal edifice is vulnerable,” according to Michael Ford, a professor of labor law at the University of Bristol Law School.

Prime Minister Theresa May has promised to maintain women’s rights, and the U.K. already exceeds EU minimum standards in some areas, including the length of paid maternity leave.

Still, leaving the EU opens the door for “a change of heart once the bulwark that EU law provides is gone,” said Michael Newman, a partner at Leigh Day, a law firm that deals with labor cases. The Fawcett Society and more than a dozen other women’s groups and political parties want to see May’s promise codified in an amendment to the so-called Repeal Bill that would officially adopt the current EU-levels of employment rights and protections.