• 29 March 2017

UK workers’ rights post-Brexit: tidal wave or damp squib?

Amongst the many anxieties caused by the EU referendum vote last year, the prospect of erosion of workers’ rights has loomed large. Despite official support for the Remain campaign from Government, historically at least, Conservative politicians have often been hostile to labour market regulation. That hostility was exemplified in 2011 by the Beecroft Report on Employment Law. Its recommendations included introducing a ‘no fault’ dismissal, and may well have been implemented had it not been for Liberal Democrat opposition.

Against that background, you might expect the current Conservative Government, unconstrained by any coalition partners, to be rubbing its hands at the prospect of ditching what many consider to be EU red tape and over regulation. However, the truth is the employment rights picture is a complex one, both historically and legally. What may also surprise many is that while the EU has been an undeniably important driver for change, as a nation we have also pushed boundaries on workplace rights quite apart from any European impetus.

The UK’s original accession to the EEC did not occur until 1973 and the original Equal Treatment Directive setting out the Commission’s stance on gender discrimination at that time was not published until 1976. However, Britain’s commitment to Equal Pay had its origins in the industrial unrest of the late 1960s, culminating in the Equal Pay Act 1971. The original Sex Discrimination Act and the resulting creation of the Equal Opportunities Commission dated from 1975 and the Race Relations Act and Commission for Racial Equality came the following year. Similarly, later on in other areas such as business transfers and working time, the UK Parliament has not only translated the relevant Directives into domestic law but been criticised at home for ‘gold-plating’ or going beyond the minimum required. By doing so the UK has demonstrated a single-minded approach to the evolution of its own employment laws even as an EU member state.

There is no doubt that in the years following our entry to the EU, European law has been hugely influential, guiding and shaping the UK’s employment laws on family-friendly rights, atypical workers, discrimination on the grounds of sex, race, religion, belief and sexual orientation to name but a few. Discrimination laws have now been consolidated and finessed into the Equality Act 2010 but it is important to understand these laws are as firmly embedded in British culture and evolving attitudes as they are driven by Europe. That cultural foundation, strengthened with support from trade unions and those on the centre left of the political spectrum, means that regardless of the tide of Brexit, the structure of UK employment law is unlikely to be swept away. It will change over time as the ebb and flow of UK common law, judicial guidance and new statute take the place of our former EU membership. But that change is likely to be only gradual and incremental.

There will undoubtedly be aspects of European-inspired UK employment law which prove more vulnerable than others due to their known flaws. For example, the problems caused to business in the area of holiday pay suggest parts of the Working Time Regulations’ days may be numbered. Looking more broadly, our approach to Human Rights may also shift somewhat given the inflexibility of the European Convention on issues such as the extradition of convicted terrorists. These are both areas that have provoked strong political views. However, as a nation there is a longstanding and broad political consensus which recognises the value of having a protected workforce.

It should come as no surprise then that the recently published government White Paper on Brexit included amongst its 12 guiding principles a commitment to upholding workers’ rights providing “certainty and continuity to employees and employers alike, creating stability in which the UK can grow and thrive”.

There is an interesting contrast to be made between the situation here and in the United States where Donald Trump’s natural conservatism has led him to consider pushing back on advancements made under his more progressive predecessor in areas such as LGBT workers’ rights. Recent press reports suggest that he was only persuaded not to do so by more liberal family members. However, he seems intent on pursuing his conservative agenda in other areas and that is something we will see unfold with interest on this side of the Atlantic.

The legal position in the United States is of course rather different, with many rights protected by the constitution and federal law such as the Civil Rights Act of 1964. Many fundamental principles of anti-discrimination law are derived from these basic constitutional rights and federal laws. But there are gaps particularly in the area of LGBT rights. Each state also has the power to legislate on workers’ rights and as a result, there is a patchwork of legislation which reflects the political complexion of each jurisdiction. As a result, workers’ rights in progressive states such as California and New York are more comprehensive, whereas in many states in the Midwest and South, discrimination laws are far less prescriptive and in some cases, non-existent. These differences are particularly pronounced in areas such as LGBT rights.

In that sense, Europe has a comparatively coherent approach to workers’ rights thanks in part to the influence of EU institutions. However, post-Brexit there is certainly greater potential for a former member state like the United Kingdom to drift in a different direction. But, given the lessons of history it seems far more likely we will remain more of a California than a southern backwater when it comes to the advancement of workers’ rights.

Chris Phillips is a Partner at Loch Employment Law, part of the Loch Associate Group. To contact Chris please call 0131 322 3501 or email

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