Keeping an eye on the ‘ex’: the EU Gothenburg Summit and the future of UK employment law

15 November 2017

This Friday, 17 November 2017, the European Commission, EU heads of government and other voices on social policy will gather in Gothenburg at a summit on EU social policy, with a focus on “fair jobs and growth”.

Why should we be interested in this? Brexit means Brexit. The UK is not part of the EU’s future. We are leaving. Checking up on the other EU states (commonly referred to as the ‘EU-27’) seems pointless. Shouldn’t we just leave the EU-27 to rebuild their future without our attention? Everyone has to move on once the tears have been shed. Isn’t that so?

However, not everyone in the UK wants to leave, or has fallen out with, the EU.

For example, prior to the referendum, unions fought to keep the UK workforce within an EU that has advanced workers’ rights immensely over the past forty years or so. Last month, Owen Tudor, the head of EU and International Relations at the TUC, stated that if the Gothenburg summit leads to new rights and policies for the benefit of working people, UK workers would benefit from that too, whether by way of the UK remaining in the single market and bound by EU legislation, by finding “another way to ensure UK governments [the plural is noted] can’t undermine our rights” or by the EU simply setting a “model to follow”.

I would add to this list. First of all, any significant divergence between the UK and the EU may affect decisions by major corporations as to where they will invest as they may be looking for areas where labour is cheaper and less protected. Alternatively, they may wish to ensure that the group brand is not damaged by investment in a market where labour rights are dwindling. It may also influence the movement of workers between the UK and the EU after Brexit – will the EU be a better place to work?

Mrs May on many occasions has voiced words of assurance that workers’ rights will be protected on Brexit. She is technically right; the plan is that the law the day after Brexit is the same as the law the day before. But that alone does not prevent future UK governments using their EU-free power to take away what has built up during our time in Europe.

But, at the moment we do not know what the EU-free power will really look like. It does, like so much in the world, depend on the Brexit deal. Shouldn’t we therefore also look at what the EU-27 are planning for future workers’ rights, as that too can affect whether we will keep up? 

Following the European Commission White Paper on the future of Europe published in March earlier this year, the Commission published a “Reflection Paper on the Social Dimension of Europe” on 26 April 2017.

On the same day, the Commission introduced the “European Pillar of Social Rights” – a wish list for EU Social Policy, including employment law. The intention is that it will be formally adopted in Gothenburg this week.

Taking the reflection paper first, it is really quite remarkable in three ways.

  • First of all, it contains statistics which put in stark terms the problems facing Europe, such as youth unemployment, ageing populations and a failure by EU states to meet their commitments to reduce poverty. 
  • Secondly, it has completely airbrushed out the UK. Although it makes sense to refer only to the EU-27 when talking about the future, the UK has also been removed from the present and the past. The statistics showing historical change also refer only to the EU-27. Even when there is a comparison with other states, you see a mention of, for example, Russia, the US, Canada, Japan, South Korea, Australia and New Zealand, but no mention of the UK. Some may say the Commission is being just a little bitter.
  • Finally, and most importantly, it shows an open-mindedness as to where EU social policy may go. It refers to three options:
    • reverting to a basic single market (which would mean a repeal of all EU legislation in areas including health and safety, discrimination and working hours);
    • broadening the areas of legislation; or
    • an ‘a la carte Europe’ whereby EU states move at different speeds, with perhaps Eurozone states moving faster.

Although the Commission is clearly against the first option, describing it as a “race to the bottom”, it is the third option which is the most interesting.

Perhaps the outcome of the Brexit referendum could have been different if the a la carte Europe, allowing the UK to go at a slower pace than some of the EU, had been on the table beforehand.

The European Pillar of Social Rights also hints at a la carte Europe, saying it is “notably conceived for the euro area”.

Despite the ambitions contained in both EU-27 documents, they bear striking similarities to comments contained in the UK White Papers on Brexit earlier this year and also with the Taylor Review on Modern Working Practices published in July this year. All identify the need to allow the labour market and legislation to develop in line with technological developments and the importance of the ‘gig economy’.

Take some example quotes:

  • “increased pace of change for acquiring new skills” (EU)
  • “more flexible forms of working thanks to the use of digital tools and the growing importance of flexi-time and tele-work” (EU)
  • “the necessary flexibility for employers to adapt swiftly to changes in the economic context” (EU)
  • “the pace of change in the modern economy, and particularly in technology and the development of new business models means we need a concerted approach to work which is both up to date and responsive and based on enduring principles of fairness” (Taylor)
  •  “Innovative forms of work that ensure quality working conditions shall be fostered” (EU)
  • “make sure legal protection for workers keeps pace with the changing labour market” (UK Government)

We will listen to what is happening in Gothenburg with interest but, in the field of employment law at least, the UK and the EU-27 are still speaking the same language.

Further information

If you have any questions about the issues raised in this blog, please contact a member of our employment team.

You may also be interested in following our Brexit blog relating to UK employment law and other legislation.

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