Brexit White Paper – will workers’ rights be protected?

2 February 2017

Following the MPs’ vote to approve the bill which will give the Prime Minister authority to issue an Article 50 notice, the Government has today published a white paper explaining the principles which will guide the UK’s Brexit negotiation strategy.

In the speech which preceded the publication of the paper, Brexit Secretary David Davis made it clear that it would be based on the 12 principles set out by Theresa May in her speech at Lancaster House in January. In terms of workers’ rights, her comments then were clear and brief: we translate the body of European law into our domestic regulations, we will ensure that workers’ rights are fully protected and maintained.”

The paper echoes that speech:

The Great Repeal Bill will maintain the protections and standards that benefit workers."

We still have a strong indication that workers’ rights on Brexit Day +1 will be identical to Brexit Day -1. As far as the future goes, the paper may be positive but, with so much of our economic future dependant on others (and, dare we suggest, on Trump’s America), are those promises worth anything?

The paper mentions areas where the UK has gone over and above what is required by EU law, such as paid holiday and maternity rights. This is true, but does not in itself give any real comfort as to how the law will develop in an entirely different legal and economic landscape post-Brexit.

But is this focus on those rights which the UK has enhanced misleading? What about rights which the UK has resisted? For example, the Government responded to the developing rules on holiday pay by quickly introducing regulations to limit their scope. Will these rights be accorded the same respect and status as the gold-plated rights?

The White Paper contains a little more information, which hints at how far the promise may or may not go:

"We are committed to maintaining our status as a global leader on workers’ rights and will make sure legal protection for workers keeps pace with the changing labour market...The [Taylor] review will consider how employment rules need to change in order to keep pace with modern business models.” (our emphasis).

This implies a condition of fundamental importance – workers’ rights are not themselves supreme; they depend on the shape and nature of the UK’s post-Brexit economy. Also, at Lancaster House, Mrs May acknowledged that she was open to the idea of changing the basis of Britain’s economic model if a deal with the EU could not be achieved on favourable enough terms.

At the very least, despite the assurances, one must concede that post-Brexit it is open to the UK to dip below the minimum standards of workers rights’ offered by the EU in recognition of a “changing labour market” and a new economic model .

Further information

Other lawyers from Kingsley Napley will be commenting further over the next few days, so follow our Brexit blog for the latest commentary.

Should you have any questions about the issues covered in this blog, please contact any member of our employment team.

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