Opinion: workplace rights from the EU provide workers in Northern Ireland and Britain with an extensive number of protections which may be under threat after Brexit

By Tony DobbinsUniversity of Birmingham

In the 2017 General Election campaign, British prime minister Theresa May promised an expansion of workers’ rights. More recently, in her Grimsby speech on March 6th, she refered to how existing workers’ rights originating from the EU will be protected if Brexit happens. "We have also committed to protecting the rights and standards currently set at the EU level – from workers’ rights to environmental protections", she said. "Brexit will not be a race to the bottom. In fact, in most of these areas the UK has led the way, ahead of the EU".

This defies belief, notably in today’s post-truth politics. In counter-factually masquerading as a pro-workers’ party, the Tories could be accused of Orwellian doublespeak. In fact, historical and contemporary examples show they they are actually widely viewed as an anti-workers’ rights party, especially since the 1979-1990 Thatcher government.

UK workers had few legal rights pre-EU

The UK had few employment laws upon joining the EU in 1973. Nearly all current workplace legal rights come from the EU. How many workers know this? The Conservatives have long opposed and/or diluted multiple EU Directives granting employment and social rights to workers. These EU directives primarily concern individual employment rights that are legally binding on member states.

From RTÉ Radio 1's News At One, Financial Times Political Editor, George Parker on Theresa May's Grimsby speech

Some commentators have suggested these individual rights are "light touch" in scope. Nonetheless, they provide workers with an extensive minimum floor of protections that they would otherwise not have. For instance, the EU Working Time Directive provides a maximum 48-hour working week, paid annual leave of at least four weeks and compulsory rest breaks. The EWTD continues to attract hostility from Tory politicians, even though John Major’s government secured a UK "opt-out" from the 48-hour week, so long as individual workers agree.

The Conservatives opposed and opted-out of the ‘Social Chapter’ protocol attached to the 1992 Maastricht Treaty, which introduced qualified majority voting (QMV) by member states on EU social and employment policies. This opt-out was reversed in 1999 by the Blair Labour government. In 2000, the Charter of Fundamental Rights of the EU consolidated social and human rights into one legal text, enacted through the Lisbon Treaty in 2009.

However, under Section 5 of The European Union (Withdrawal) Act 2018, the Charter would be removed from domestic UK law following Brexit. The UK government promises to end the case law jurisdiction of the Court of Justice of the European Union (CJEU), one of its redline issues in Brexit negotiations. It is unclear how this would operate in practice alongside government assurances under the same Act that existing EU legislation, including workers’ rights, will be transferred into domestic UK law and retained. Ministers would be given "Henry VIII powers" to alter regulations without requiring full parliamentary approval.

From RTÉ Radio 1's The Business, labour historian Francis Devine on Irish workers' rights activist Rosie Hackett

The prime minister also remarked in her Grimsby speech that "if the EU expands workers’ rights, we will debate those measures in parliament and decide if we want to follow suit". This would include new EU Directives such as the Work Life Balance Directive and Transparent and Predictable Working Conditions Directive.

Labour and trade unions have criticised Tory promises on post-Brexit workers’ rights. Experienced labour lawyers also believe that, if Brexit happens, political promises on preserving workers’ rights are not legally binding. A legal opinion from EU law expert Aidan O’Neill QC concludes: "in the absence of any continuing jurisdiction of the CJEU on UK law after Brexit, and standing the fact that workers’ rights can no longer be entrenched against adverse decision of the national authorities, it seems inevitable that the level of protection for workers’ rights in the UK will decline as compared to the level of protections which will be maintained in the EU".

Secret assessment – code for axing workers’ rights?

The Independent recently revealed that a secret Department of Business, Energy and Industrial Strategy impact assessment identifies workers’ rights as an area for "maximising regulatory opportunities" after Brexit, to supposedly boost the economy. This looks like code for axing workers’ rights and, again, the EU Working Time Directive is specifically targeted. What the government says in public and what it may be privately planning to do appear to diverge.

There is nothing preventing future governments intent on gradually shredding employment protections to cut red tape

Who needs working time regulations?

There is nothing preventing future governments intent on gradually shredding employment protections to cut red tape and further liberalise and deregulate the economy. The concern is that a post-Brexit race to the bottom could unfold with pursuit of more extreme labour market flexibility. This is clearly the direction of travel for right-wing Brexiteers. If their destination is reached then it is an understatement to suggest it could be detrimental for workers; particularly those residing in leave voting regions, ironically.

Wolf in sheep’s clothing

From the 1980s onwards, Mrs Thatcher and her ideological disciples have fixated on restricting worker rights to collective trade union representation and capacity to take industrial action. They implemented multiple anti-trade union employment laws, up to and including, the regressive Trade Union Act 2016.

Other activities show that the Conservative Party are no champions of workers’ rights. This is not exhaustive, but includes: initial opposition to the National Minimum Wage introduced by Labour; the controversial Beecroft employment law report; Employment Tribunal fees (subsequently declared unlawful by the Supreme Court); increasing the qualification period for unfair dismissal rights to two years; a U-turn on promises to put workers on boards; and the missed opportunity of the Taylor Review.

Professor Tony Dobbins is Professor of Employment Relations and HR Management at Birmingham Business School at University of Birmingham. He is Visiting Professor at Kemmy Business School at the University of Limerick

The views expressed here are those of the author and do not represent or reflect the views of RTÉ