Category Archives: Brexit

CERIC Doctoral Conference 2018

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Emma Partlow

By Emma Partlow, Postgraduate Researcher, Department of Social Policy, Sociology and Criminology (University of Birmingham)

I was honoured to have been invited to present my research at the Centre for Employment Relations Innovation and Change (CERIC) Doctoral Conference on the 20th June at Leeds University Business School. As a doctoral student from the University of Birmingham, it was a pleasure to network within a room full of people who articulated original and innovative research in such an engaging manner.

The conference encompassed a wide-range of disciplines, including: Social Policy, Languages and Cultural Studies, Psychology, Performance and Cultural Industries and of course, Business and Management in its many forms. It was exciting to see how a diverse range of talks could marry together under the banner of Inequalities in the Workplace. These talks encompassed everything from: sexual harassment in the workplace, strategic human resource management, apprenticeships, inequalities in skills developments during recessions, collective labour conflicts in China, case study on the Nigerian Electricity Distribution Sector, sex work, organisational stress management, pay gaps and inequality, labour insecurity, marginalisation of theatre lighting designers, power in modern management, and the employment experiences of people with Multiple Sclerosis. Not forgetting the key note talk from Professor Chris Forde who kicked off the day so eloquently with the ‘Inequalities of Work in the 21st Century – The Rise of the Gig Economy’.

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Participants of the Doctoral Conference

I am fortunate to have had the opportunity to present my research project looking at the impact of equalities legislation on disabled people in the workplace, which critically analyses the concept of ‘reasonable adjustments’ in the policy context of the Government’s White Paper Improving Lives. The audience were receptive to my theoretical framing, which sees me draw upon the concept of bio-power and subtle coercion in the form of Libertarian Paternalism.

Doctoral students eloquently presented their work and the day flew by with methodological discussions, engaging debate and suggestions within an entirely supportive and ‘safe’ space. It has to be said that this was one of the most supportive academic spaces I have had the pleasure to participate in. The development of spaces where doctoral students can engage in supportive discussion about their work is important and something we must actively continue to arrange.  I am sure I am not alone when I say that questions, comments and suggestions received in this manner are invaluable and can go a long way in supporting a thought-process or the development of ideas.

I would like to thank CERIC and Leeds University Business School for their generosity and hospitality. Not only did they host this doctoral conference and provided refreshments and lunch but prizes were provided for the prize winners and I am honoured to have been chosen as one of these prize winners. The prizes were put forward to help with the cost of attending conferences of choice; I think this is an excellent incentive to encourage people to share their work, regardless of the stage they are at within their doctoral journey.

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From left to right: joint 1st prize winner for best paper presentation Maisie Roberts (CERIC), Dr Jo Ingold, joint 1st prize winner  Marina Boulos (CERIC), joint winner for the best poster presentation Sophie Morrell (Bradford) and 2nd prize winner for best paper presentation Emma Partlow (Birmingham)

The success of this doctoral conference has inspired me to adopt the theme of ‘Inequalities and Work’ to host a conference at the University of Birmingham so please do watch this space! It would be my pleasure to welcome some familiar and friendly faces to Birmingham and to hear how your work has developed since this event.

Brexit, EU labour migration & worker rights: the story so far

Immigration and restricting EU migrant rights to freedom of movement were core issues in the lead up to the referendum vote, yet agreement on the detail of a new UK immigration policy continues to be a way off, leaving employers, workers and their families in limbo. Researchers based in the Centre for Employment Relations Innovation and Change (CERIC) at LUBS working on labour migration, mobility and changing patterns of work, have been working with different interest groups (business, unions and civil society) in a unique way to enhance understanding of how these groups are coping with the uncertain impacts of the Brexit vote. This exploratory research provides insight into the ongoing challenges of trying to anticipate, respond to and shape migration policy for and on behalf of their members in an uncertain context. This blog sets out the background and how the CERIC team’s research agenda is being shaped by bringing different interest groups together on this emotive and evolving topic.

Current context

After the BREXIT vote in June 2016, UK and EU negotiators signaled that reaching agreement on the rights of EU and UK citizens already living in another member state was a priority. Yet, it was only on 8th of December 2017 that UK and EU negotiators published a joint report outlining principles on the treatment of EEA nationals in the UK and UK nationals in the EU and on 21st June 2018, that the UK government announced details of the ‘settled status[1]’ scheme. Campaign groups point to many ‘unsettled’ questions about this process and the new forms of regulation of EU labour mobility post-Brexit. An immigration bill was announced in January 2017 but was subsequently put on hold until wider Brexit negotiations are progressed. The UK government has indicated EU freedom of movement will end, but migration policy continues to be shaped by the wider negotiations with the EU and ongoing internal political processes and policy analysis. The Home Secretary instructed the Migration Advisory Committee (MAC)[2] to report by September 2018 on the impact of EEA workers on the UK labour market and the Home Affairs Select Committee is undertaking an inquiry into Post-Brexit Migration Policy.[3] Thus, there continues to be both formal and informal spaces for dialogue between different groups of social actors seeking to shape these outcomes.

While these deliberative processes are ongoing, net migration has slowed considerably since the referendum vote. According to the ONS[4], the largest drop in net migration to the UK to occur in decades was experienced in the period June 2016 to June 2017 falling from 336,000 to 230,000: three quarters of this fall was due to the drop in migration from the EU. More recent statistics show that migration from the EU has continued to fall. The ONS reports notes that ‘the numbers of EU citizens coming to the UK looking for work decreased by 58,000 over the year to September 2017, particularly driven by the fall in numbers of citizens from EU15 and EU8[5] countries (24,000 and 18,000 respectively). For the latter, this is the lowest number recorded since accession. Recent polls[6] suggest that the UK general public’s perception of immigration has softened since the Brexit referendum, yet the ONS migration data are indicative of the material effects felt by workers, and by extension employers, of the ongoing uncertainty of how the UK will regulate EU labour mobility post-Brexit.

Employers, legal advisors, trade unions, civil society and faith groups and local, national and international authorities all have concerns around the implications of Brexit for their various constituents and are variously involved in the political debates noted above. The positions and actions of these different interest groups, therefore, have important implications for the changing socio-economic relationship between the UK and the European Union and for the UK’s own social model. Some of these groups seek to be a counterweighing power to social, political and media forces seeking a ‘hard’ Brexit outcome and stricter regulation of EU labour migration to the UK. These groups are also critical in shaping the environment that affects the everyday experience of those that exercised their right to free movement between the UK and the EU. CERIC’s research has been on exploring actions and reactions of these groups within this extraordinary period of uncertainty by asking a set of inter-related questions: How do different social actors imagine the migration landscape post-Brexit? What challenges and consequences of Brexit do they anticipate for labour mobility? How are they formulating policy positions and trying to shape the debate around the new post-Brexit immigration system?

 

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CERIC BREXIT and labour mobility roundtable
September 2017

By critically exploring the competing visions of what the UK’s new social model might look like and bringing together the voices of different interest groups we are generating new data and promoting dialogue as part of our commitment to developing research that is co-produced: giving different stakeholders a voice in shaping the key research questions and design[7]. The framing of these questions aims to not only understand and amplify these diverse voices but also to bring different actors together to discuss complex questions. To realise this aim CERIC researchers have undertaken scoping interviews and both hosting and participating in roundtable events exploring common concerns and areas of difference with respect to the question of labour mobility around four connected and overlapping themes, employment and legal frameworks; social protection; regulating labour mobility and migration policy. For example, in September 2017, CERIC held a roundtable with employer groups including the Chamber of Commerce and Sector Skills bodies, civil society organisations campaigning for the rights of EU citizens in the UK and trade unions. Members of the CERIC team have also participated in roundtable events hosted by other partners including the Chamber of Commerce and regional migrant support networks and undertaken wider interviews with employment lawyers, faith and community organisations. The following summarises the themes emerging from these discussions and we conclude by setting out the implications for our research agenda.

 

The significance of labour mobility and freedom of movement

The different groups taking part in the research had contrasting positions in advance of the referendum vote. For example, most, but not all, trade unions advocated for ‘remain’ and were generally in favour of continuation of the free movement of workers. Business organisations took a more neutral stance due, in part, to business members being both ‘leave’ and ‘remain’ supporters, reflecting that some sectors such as hospitality, construction and the public sector are much more likely to be adversely affected by restrictions in the movement of EU workers, whereas other parts of their constituency were less likely to employ migrant workers. Unsurprisingly, those campaigning for the rights of EU citizens were in favour of remaining in the EU. Overall there was limited reflection given by employer or worker representatives on the merits or challenges presented by the existing policy of freedom of movement. Much more emphasis was placed on what might come next. There was an acceptance (albeit for some, a very reluctant acceptance) that there will be restrictions placed on future migration from the EU.

The discussion developed more broadly to cover future scenarios for the UK economy informed, in the main, by existing understanding of what had led to pre-Brexit levels of EU worker migration to the UK. These drivers were seen by business and worker representatives as inextricably linked to economic considerations such as UK and EU labour markets, pay and wages, skills supply and demand, levels of employment (and under-employment) and UK trade and investment decisions. Yet, the civil society groups that were campaigning for the rights of EU citizens in the UK reminded us that, while key drivers for migration is often work and employment, there also many social factors that shape labour mobility such as the quest for family re-union or education. In this regard a worrying report by colleagues at the University of Birmingham has been published recently[8], highlighting the legal limbo in which many EU families will find themselves in the field of family re-union. These observations made it problematic to talk about migration policy in isolation and illustrates the need for future migration policy to be developed with reference to wider policy considerations.  Rather than re-thinking the regulation of migration in isolation, remarks from the participants reflect that post-Brexit migration policy needs to be developed in the context of wider economic and social considerations.  This accords for example with the objectives of the current MAC commission on the employment of EEA workers which seeks to ‘aligning the UK immigration system with a modern industrial strategy (p20),’ yet many other aspects of related policy also need to be considered in terms the affect worker rights, labour standards, social and welfare rights.

Visions for EU labour migration under different Brexit scenarios

Different visions of future migration policy were expressed by the various stakeholder groups. Employer organisations taking part in the CERIC research were, over-time, less ardently free market oriented than might have been expected.  Initial positions stated by employer organisations in the months immediately after the referendum strongly expressed the desire for open migration regimes to meet the needs of employers seeking sourcing both high and lower skilled workers[9].  Over time, the tone expressed by some employer groups had shifted slightly to the acceptance of a migration system that may be more restrictive due to the need to be mindful of ‘politically acceptable’ outcomes. FlipchartHowever, umbrella organisations such as the CBI and Chamber have continued to push government for greater certainty on the rights of their EU workers, on hiring from EU countries during the negotiation period and to avoid overly bureaucratic processes for post-Brexit hires. One employer group, the CITB, were hopeful that a case could be made for special conditions to more easily allow recruitment from the EU to address ‘strategically important’ skills shortages. Others, such as the British Hospitality Association (BHA) have suggested a sector-based quota system for hospitality, considering that predicted annual recruitment need is over 100,000 people, assuming zero labour turnover amongst British born workers.[10]  The likely restrictions associated to the terms of residency for workers under these quota systems need however to be considered as part of the wider social implications that migration reform has on migrants’ rights and those of their families.

debateThe TUC and union participants in the CERIC roundtable were more clearly advocating for free movement and for the importance of free trade and the single market as an important mechanism in establishing a ‘level playing field’ making particular reference to the value of the Social Chapter[11] and its benefits for both ‘good’ businesses and for workers. Underpinning this position was a common assumption that withdrawal from the EU would lead to employment protections being weakened, threatening a ‘race to the bottom’ in terms of worker rights and employment practices that also adversely affect those ‘good’ employers. There have been public assurances from the Government that workers’ rights will be maintained and even strengthened but many, including trade unionists, remain skeptical that this will be the case.

Current activity

The current activity of different interest groups could be grouped into three categories: developing more intelligence on labour mobility issues affecting members; developing support and guidance for constituents and looking to shape the political debate. The employer bodies participating in CERIC discussions were trying to improve data and analysis on the use of migrant labour amongst their membership to help assess the potential impact on the future workforce. They were also developing understanding of the potential for and limitations of employers using alternative strategies to make up for any loss of EU worker recruitment[12] through for example more training and development of indigenous workers or investment in new technologies. Yet the employer groups noted that gaps remained in their understanding of patterns of migrant labour demand or the longer term historical drivers that had shaped labour migration in specific sectors and regions. Many unions and employers were using legal services to keep themselves up to date with the negotiations between the UK and the EU, advising EU migrants among their members on how to apply for permanent residence under the current regulation. For example, the BHA is providing materials to help ensure that workers can exercise their rights to certification of permanent residency where applicable. This work also aims to have a positive effect in terms of boosting goodwill with EU workers towards hospitality sector employers. Trade unions were also directly engaging with EU migrant workers and community networks to provide advice to those concerned about their rights during the transition period.

Influencing the debate

CERIC’s initial research involved participants from international, national and regional organisations in order to explore the nature of dialogue at, and between, different levels.  At the international level, UK civil society groups have been campaigning to develop alliances with those leading campaigns promoting the interests of UK citizens in Europe and engaging directly with the EU negotiators to stress that EU labour mobility should be an intrinsic part of integration undertaken by the people of Europe themselves rather than a purely economic matter deriving from the rules of the single market. At the national level, all groups are making representations to government through formal and informal channels including to the relevant parliamentary scrutiny committees of DEXEU and Economic Affairs and the Home Office appointed commission on EEA migration being undertaken by the MAC. Regional groups, perhaps inevitably, made reference to the possibility of regional flexibilities in any migration system, notably to meet particularly localised skills needs. This focus is shaped by broader political tensions around the devolution of powers to the UK nations and regions of the UK including the devolution of budgets around skills training and infrastructure. This view was given focus by an early report by the Institute of Public Policy Research which contained six proposed options for the new immigration policy one of which included the suggestion of sub-state solutions to migration policy[13].

Conflicting and Common issues

Our roundtable discussions included some robust (yet cordial) difference of opinion around:  visions of future policy and the impact of new migration regulations on employers and citizens. In particular we noticed different understandings of what “regulation” means. Employer bodies associated migration policies with the possible risk of increased bureaucracy, notably at the point of recruitment. In contrast, trade union representatives regarded regulation positively in the form of protections of standards for workers. Unions stressed that proposals requiring workers to have employer sponsors could make migrant workers more dependent upon those employers, limiting their voice. An obvious paradox emerges in that employers were highlighting the cost of compliance and unions the cost of non-compliance or regulation that enables the potential for greater exploitation of workers, thereby lowering labour standards.

In terms of common threads, there were four areas where there was a convergence of views: firstly, the need to assure security for those EU workers already in the UK and their families; secondly, that student numbers should not be included in migration statistics; and, thirdly, that there was need for greater dialogue between different groups of stakeholders to build a better consensus on the way forward, not just toward Brexit, but after the exit date and beyond. Finally, it was also notable that there was a common view amongst stakeholders that investment in local, indigenous, labour was seen as a possible alternative strategy that could mitigate against the need for migrant labour. This runs counter to an alternative perspective: the  skills and training of indigenous workers could be seen as positively related to the use of migrant labour. This is a theme that the interim MAC report of March 2018 noted,[14] providing illustrations of how the recruitment of skilled European workers contributed to improved training levels. The final report by MAC on EEA workers, due in September 2018, will look specifically at the impact of the employment of EEA workers on the UK resident population, including the impact on training.

Next steps

It remains to be seen how UK government and EU negotiators will re-shape labour migration regulation to adequately address the demands of civic, business and labour organisations in the UK while giving regard to the outcome of the referendum vote. This continues to take place within an uncertain and volatile political environment.  The early stage research undertaken by CERIC researchers has provided insights into the ongoing challenges and activity of different groups trying to anticipate and shape policy appropriately for and on behalf of their members. Key themes emerged for the future directions for research. This includes the need to improve understanding of the regional and sectoral dimensions of the ‘EU workforce’, how patterns of migrant employment have developed and the roles that different institutional actors have played in facilitating these trends and finally, how migration policy will evolve in relation to related (socio-) economic policy such as the UK Industrial Strategy.

This requires taking more historical and sociologically informed perspectives to help move the debate forward. A deeper analysis will help different interest groups anticipate the implications of ‘hard’ and ‘soft’ BREXIT scenarios. The co-production approach has illustrated the willingness of different parties to strengthen and deepen the level of debate, enhance understanding of different positions and provide opportunities to influence debate at the local, national and international levels. Participants recognised the value of exploring policy proposals through joint analysis of tensions and common ground to help unpack the content of proposed policy develop understanding of potential impacts on the rights and responsibilities of different groups helping to move the debate beyond current political narratives focused primarily on annual immigration targets. CERIC researchers will continue to bring these voices together, highlighting points of tensions as well as commonalities, contributing to the development of research informed public debate and policy that will shape the social model of a post-Brexit Britain that will, whatever the outcome of specific migration policy, to continue to be inextricably linked to that of its European neighbours.

[1] https://www.gov.uk/settled-status-eu-citizens-families/applying-for-settled-status

[2] https://www.gov.uk/government/collections/impact-of-eea-and-non-eea-workers-in-uk-labour-market-responses

[3] https://www.parliament.uk/business/committees/committees-a-z/commons-select/home-affairs-committee/inquiries/parliament-2017/inquiry4/

[4] Office for National statistics. Migration Statistics Quarterly Report: February 2018 Available at:  https://www.ons.gov.uk/peoplepopulationandcommunity/populationandmigration/internationalmigration/bulletins/migrationstatisticsquarterlyreport/february2018#fewer-eu-migrants-coming-to-the-uk-for-work

[5] EU15 country members prior to the 2004 enlargement; EU8 those joining in the 2004 enlargement

[6] YouGov Top Issues Trackers (2017-2018); Ipsos-MORI Issues Index (May2018)

[7] For a discussion of co-production in social science research see for example https://www.n8research.org.uk/view/5163/Final-Report-Co-Production-2016-01-20.pdf

[8] https://eurochildren.info/2018/03/28/a-generation-of-children-of-eu-parents-to-be-lost-in-the-intricacies-of-brexit-research-reveals/

[9] http://www.britishchambers.org.uk/policy-maker/policy-reports-and-publications/business-brexit-priorities.html

[10] http://www.bha.org.uk/wordpress/wp-content/uploads/2016/11/BHA-Brexit-Consultation-11116.pdf

[11] https://www.coe.int/en/web/turin-european-social-charter

[12] http://www.britishchambers.org.uk/Business%20Brexit%20Checklist%20BCC.pdf

[13] https://www.ippr.org/research/publications/an-immigration-strategy-for-the-uk

[14] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/694494/eea-workers-uk-labour-market-interim-update.pdf

Why so-called ‘Barista Visas’ won’t help UK Hospitality Workers

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Matthew Cole

Home Secretary Amber Rudd has recently introduced the idea of a so-called ‘barista visa’, undoubtedly to militate against the potentially disastrous effects of Brexit for UK businesses. The proposal was suggested by Lord Green, chairman of the right-wing think tank Migration Watch UK, who claimed it would, “kill two birds with one stone” by meeting employer needs while “maintaining links with the EU”. By links, he must have meant links to a highly exploitable workforce with no rights. The ‘barista visa’ would allow young European citizens to migrate to the UK and work in the hospitality industry for up to 2 years; however, it would deny them access to benefits, schooling, housing or any possibility of extending their stay. The proposed visa would be modelled on the Tier 5 (youth mobility scheme) visa, which currently allows 18-to-30-year-olds with at least £1,890 in savings from non-E.U. countries such as Australia, Canada, New Zealand, South Korea, and Taiwan to work in the U.K. for up to 24 months. Despite the government’s optimism, the ‘barista visa’ would not only fail to offer adequate solutions to Brexit, it would exacerbate issues in the industry for both employer and employees.

The hospitality industry (including hotels, bars, cafes and restaurants) makes a significant contribution to the UK economy. The industry added an estimated £57 billion to the economy in 2014, roughly 4% of GDP and it employs around 3 million people in the UK.  Since 2011, it has grown by 13%, more than double the employment growth of the economy overall. Yet in the context of this dramatic growth, working conditions remain poor. Average gross earnings for full-time workers in the hotel industry are the lowest in the UK and the industry has the highest incidence of low-paid workers. Added to this is its dubious status as one of the least unionised sector of the economy.

Today, the hospitality industry is experiencing increasing instability and pressure as a result of Brexit. Britain leaving the EU will no doubt have serious and lasting impacts on the UK labour market and workers rights. According to the ONS, E.U. nationals make up 7% (2.2 million) of Britain’s total labour market of 30.3 million. However, some industries will be more affected than others and the hospitality – with over 60,000 workers per annum working in this sector – is likely to be one of those feeling the impact of the referendum result. A report by KPMG indicates that hospitality is the largest business sector employer of EU nationals as a proportion of total workforce. Hotels and restaurants employ the highest percentage of EU migrants with certain roles such as waiters and waitresses (75.3% EU nationals), housekeeping staff and chefs representing a particularly high portion of migrants. Based on current projections, the absence of an annual inflow of new EU migrants into the hospitality industry each year would generate a significant recruitment gap, which would increase over time.

Despite it’s moniker the ‘barista visa’ scheme would fail from a business standpoint .The two-year limit alone is reason enough to anticipate this, since it forecloses incentives for training and retaining workers in an industry that is experiencing serious problems with skill shortages and turnover. According to People 1st, turnover in the hospitality industry is estimated at 20 per cent, while the KPMG survey of BHA members puts the estimate even higher, at 50.2 per cent. This costs the industry approximately £274 million annually. The Financial Times, reported that the ‘barista visa’ would also be open to other sectors that are heavily reliant on low-wage migrant labour, such as social care, agriculture, and construction. While the numbers of migrants for each industry will be restricted with an overall cap, there is no guarantee that there would be enough EU migrants who meet the proposed criteria and aim to work in hospitality. Last year, The Times reported that only 40,000 people applied on the existing Tier 5 youth mobility scheme for all industries. This is 20,000 less than the number of EU migrants who gained employment in the hospitality industry alone. Given the strict criteria of the ‘barista visa’ and the fact that the hospitality industry is expanding rapidly the number of EU migrants is likely to fall woefully short of the needs of employers. Combine this with low wages and the rising anti-migrant rhetoric of mainstream political parties and the situation looks dire indeed.

To attempt to lessen the impact of Brexit, BHA members have petitioned the government to retain EU workers and openness for tourism. They recognise how important migrant labour is for their businesses even if they have not necessarily recognised the rights and economic rights of migrants as a whole. The BHA’s focus on the business case for hospitality ignores the concerns of most of its labour force. Historically, they have opposed legislation designed to protect workers’ interests such as the minimum wage legislation in 1999 and tips legislation in 2009. They have also avoided addressing criticisms from trade unionists about issues in the industry. Last year, Unite regional officer Dave Turnbull offered a different explanation of why the industry cannot recruit and retain the type of workers it needs. He cited a fundamentally “flawed, low cost and exploitative business model” in an industry where “low pay, insecure working, exploitation and institutionalised bullying are rife”[1]. The ‘barista visa’ will only exacerbate these problems. It would further entrench divisions in the labour market and further undermine the collective rights of workers. The scheme denies migrants a social safety net and offers no chance to progress in a career or build a life in the U.K. long-term.

The ‘barista visa’ also fails from a worker’s perspective. Labour Force data shows EU nationals are already concentrated in low-paid and lower-level occupations, especially in the hospitality industry. As of 2016, less than 1% of EU nationals in the hospitality industry were employed in the ‘higher managerial and professional’ occupation grouping. The current state of UK labour law weaves issues of migrant rights into the employment relationship, leaving open the potential for employers to terminate their contract which could effectively leave them exposed to deportation. The ‘barista visa’ ultimately will keep EU migrants in a legally subordinate position to nationals, exacerbating the ‘migrant division of labour’[2] and further undermining all working conditions. The further precarisation of migrant labourers in the hospitality industry will at best allow business owners to continue exploitative practices and at worst, further divide workers.

[1] Unite, 2016. Unite in direct plea to London mayor to tackle exploitative work practices in London’s hotel industry. Press Release. http://www.unitetheunion.org/news/unite-in-direct-plea-to-london-mayor-to-tackle-exploitative-work-practices-in-londons-hotel-industry/

Brexit and worker’s rights: should workers and trade unions be concerned?

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Dr Liz Oliver

Brexit creates uncertainty for important employment rights. Very many of the employment rights that have come to be expected as part of an employment relationship in the UK derive from EU law. Should the UK no longer be obliged to maintain these as part of its obligations under whatever relationship it has to the EU, then their future becomes much less certain. Could, on the other hand, Brexit create an opportunity for employment rights? An opportunity to re-think the way that employment law and other forms of regulation (such as collective bargaining) work together in a way that suits the economy in UK and responds to the national and global challenges that workers face? The answer to that question very much depends on the opportunity for an open and informed democratic debate. Whilst the Government is making assurances about protecting the workers’ rights, the mechanism by which it is doing this – ‘a Great Repeal Bill’ – potentially contains a back door through which such provisions could be readily amended or repealed without the full scrutiny of Parliament. Unfortunately therefore both workers and trade unions are right to be concerned.

What is at stake?

The impact of EU law on employment in the UK reaches far and wide, encompassing equality legislation; pregnancy; maternity and parental leave; paid holiday; employee rights in the context of insolvency; collective consultation in the context of redundancy to name but a few areas. Others have mapped this in great detail.

The impact of Brexit on this body of workers’ rights depends on two main contingencies;

  • the nature of the future relationship with the EU and
  • the political climate with regard to employment regulation at national level

It seems unlikely that the UK’s future relationship with the EU will entail obligations in the area of employment and other social law but much remains to be seen. As details of the Prime Minister’s negotiating strategy emerge in particular the intention to leave the single market and customs union and not to contemplate existing models such as ‘the Norway option’ which would entail continued membership of the European Economic Area. It becomes clearer that the overriding goal is for the UK’s future relationship with the EU to entail minimal to non-existent obligations. Nevertheless much remains to be seen. The Prime Minister’s speech and the subsequent white paper set out her unilateral intentions ahead of the negotiation with the other Member States of the EU. As such, it is aspirational and projects an intention for Theresa May to have her cake and eat it too. Any concessions around key objectives such as the “greatest possible access” to the single market and “tariff-free trade with Europe and cross-border trade there to be as frictionless as possible” will come with considerable strings attached.

In terms of the political climate with regard to employment regulation, the picture here is mixed. The current Government has not taken the overtly deregulatory stance of the Coalition Government or previous Conservative Government and the Prime Minister and her government have made assurances about protecting workers rights. Nevertheless concrete legal steps to ensure that current standards are maintained are lacking. Of particular significance is the distribution of power between the Executive (Government) and Parliament in decision making in the area of employment law. This important matter will shape extent to which matters of employment law will be opened up to democratic debate.

To what extent will worker’s rights be protected and maintained through the Brexit process and beyond?

The EU law that is relevant to employment takes different forms and takes effect at national level in different ways. Whilst some employment law derived from the EU can be found in Acts of Parliament (primary law) other provisions have been transposed using secondary legislation based on the European Communities Act 1972 and others still take effect automatically because they are directly applicable (The European Communities Act 1972 allows such provisions to have effect without further enactment).

Brexit poses two types of issues 1) technical issues about the form and function of different provisions and 2) issues of substance about what role employment law should take within the UK.  As the discussion below will show. The two issues interrelate.

Following the referendum result some called for a repeal of the European Communities Act 1972 (in order to ‘undo’ EU law), but it was clear that that position would be unworkable. The Prime Minister has instead announced a bridging mechanism in the form of a ‘Great Repeal Bill’ which will repeal the European Communities Act 1972 and transpose existing EU law into national law. The Government’s white paper on the UK’s exit from the EU contains assurances about worker’s rights:

“The Great Repeal Bill will maintain the protections and standards that benefit workers. Moreover, this Government has committed not only to safeguard the rights of workers set out in European legislation, but to enhance them”

On the one hand this looks like a sensible idea. It maintains legal certainly and potentially opens up a space to review what provisions to keep and whether or how to change or remove them. But an important question is who gets to make these decisions. Will it be Parliament or will it be the Government?

Constitutional lawyers have identified the proposed use of enabling provisions within Great Repeal Bill as a stumbling block to achieving enhanced Parliamentary sovereignty. The Department for Exiting the European Union’s announcement states “The Repeal Bill will include powers for ministers to make some changes by secondary legislation, giving the Government the flexibility to take account of the negotiations with the EU as they proceed.” Such enabling provisions may give ministers the power to amend or repeal former EU law based on the Great Repeal Act using ‘light touch’ secondary legislation. Of particular concern are so called ‘Henry VIII’ clauses which would allow for the repeal of primary law without further Parliamentary scrutiny, these could open up employment law that is already enacted by Acts of Parliament to amendment or repeal. It raises concerns that the ‘back door’ is left open for the Government to make significant changes to employment law without full debate or scrutiny. The scope and exercise of such powers will delineate the potential for Parliamentary (democratic) debate about what employment standards are expected by workers and employers within the UK.

The size and shape of the ‘back door’ is yet to be seen but talking about assurances that the Government has given on worker’s rights one legal expert notes

“There’s a definite “fox in charge of the henhouse” vibe here – quite literally so, if we remind ourselves of cabinet minister Liam Fox’s attitude to EU employment regulation”.

Workers and trade unions are right to be concerned and to seek legal mechanisms to guarantee employment rights.

Attempts to assure worker’s rights

Labour MP Melanie Onn introduced a private members Bill ‘The Workers’ Rights (Maintenance of EU Standards) Bill’ as an attempt to ensure that the current legal regime remains in place, however this was ‘talked out’ of Parliament on Friday (13th January).

Several amendments to the ‘Article 50 Bill’ (European Union (Notification of Withdrawal) Bill 2016-17) seeking to protect employment law were tabled. These took different forms, some sought to ensure  that the Prime Minister have regard to the public interest in existing social rights and others sought to ensure that current provisions are maintained and that Parliament has full scrutiny of any proposed changes to primary and secondary law. None of these amendments have held.

My view

Whilst some have argued that the removal of key employment protections that derive from EU law would be ‘politically unthinkable’ others argue that it would be ‘naïve’ to assume that any of the rights derived from EU law would be immune from repeal. It is my view is that a government with a deregulatory agenda can make important changes to employment law that are far reaching yet subtle, even where whole-sale deregulation would be politically unworkable (see previous blog post). The use of Henry VIII clauses within the proposed ‘Great Repeal Act’ could facilitate far-reaching changes without commensurate democratic debate. Employment law is complicated stuff, nothing short of a full and open democratic debate can support its appropriate reform. The Brexit domain is a million miles from this.