Ask The Expert: Brexit and workers’ rights

In our latest ESRC-sponsored Ask The Expert seminar, Catherine Barnard, Professor in European Union Law and Employment Law at Trinity College, University of Cambridge discussed the possible impact of leaving the European Union on domestic and migrant workers’ rights. It can be watched on Periscope here. 

Professor Barnard led the seminar by dismissing the narrative that EU law hampers a member state’s ability to legislate in areas focusing on workers’ rights: EU Employment Rights are minimum standards directives which simply act as a floor to legislation in member states. Member states are then free to enforce their own laws above these standards and to develop their own laws in areas which are not covered by current EU legislation.

The three components of the (Great) Repeal Bill:

  • Repeal the European Communities Act (ECA) which gives supremacy to EU law above national law. The ECA guarantees that a worker’s ‘floor of rights’ can be enforced locally across the European Union in national courts. This platform of enforcing rights is not guaranteed in any trade agreement.
  • Convert a corpus of EU law into domestic law. As most EU employment laws are already incorporated into UK law, this step is unlikely to lead to significant impact, other than on the role of the European Court of Justice (ECJ).
  • Correct statutes which reference EU law. This is the most controversial component as EU law will no longer represent a ‘floor of rights’ of workers and successive Governments can always u-turn on promises that the rights of workers will not change post-Brexit and repeal elements of various statutes.

Challenges for British courts:

  • Decisions made by the European Court of Justice prior to our exit from the European Union would continue to bind British courts and can be overturned only in exceptional cases.
  • After ‘Brexit day’, the ECJ will become a jurisdiction UK courts can consult but will not be obliged to follow. However, the ECJ will no longer have the benefit of UK law input as there will be no sitting British judge or British Advocate General and likely no British council arguing cases.
  • British courts will also find it difficult to apply judgements made by the ECJ as these would be made in a context which would no longer be relevant for the UK, such as delivering the Single Market or European citizenship.

Professor Barnard noted that British judges have never slavishly followed the rulings of the ECJ and UK law goes further than EU requirements. For instance, legislations on maternity protection and minimum wage have been solely a British initiative.

What Brexit could mean for workers:

  • Although the Government has pledged to protect the existing rights of all workers, there is no mechanism for enforcing this commitment.
  • An exit agreement ‘deal’ might be conditional on the UK’s continued compliance with EU social rights. Should there be ‘no deal’, the absence of the compulsory safety net ‘floor of rights’ could see the UK labour market becoming more deregulated in order to be globally competitive.

The role of EU migrants:

  • In 2016, EU nationals represented 7% (2.2 million) of the UK labour market.
  • There is no concrete empirical evidence that EU workers come to the UK to take advantage of our benefit system; they are attracted by higher wages.
  • In the short term, EU migration is to continue to decrease as the fall in the value of the pound has a direct effect on wages.
  • The improvements of the health of the economy in the Eurozone and the psychological effect of feeling unwelcomed are also likely to supress migration numbers.
  • However, some sectors such as wholesale and retail trade, financial services, and manufacturing have become increasingly dependent on EU workers. It is unclear how Brexit will impact employers in these sectors.

Professor Barnard concluded the discussion by explaining that immigration control is privatised and primarily enforced by employers and landlords rather than physical borders. Current UK immigration law makes it costly to apply and sponsor Visas, which would put small employers at a disadvantage should EU workers fully fall subject to it in the future.

Additionally, both domestic and migrant workers risk losing the safety net which guarantees their current floor of rights, should statutes of the EU employment rights be repealed by Parliament.

Bottom Line

One thing policymakers and opinion-formers should take from Professor Barnard’s work: The rights of workers are protected for the moment, however the consequences of a ‘No Deal’ with the European Union might cause them to worsen. One common mistake in popular debate Professor Barnard would like to correct: The distinction between the Court of Justice and the Court of Human Rights.


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