Will workers rights be diluted in a "no deal" Brexit?

The Government has recently published guidance on  "Workplace rights if there’s no Brexit deal" which sets out to reassure workers that most of their rights will stay in place after 29 March 2019.

The UK triggered Article 50 on 29 March 2017 which started the formal process of our withdrawal from the EU and we have two years to negotiate a new deal. After that time all treaties cease to have effect (it is as if they never existed) unless the deadline is extended by agreement. 

I think its fair to say that progress of Brexit talks between the UK Government and the EU have not been easy and there is a real chance that we may exit on 29 March next year without a deal.  

What happens to workplace rights if this happens?

The European Communities Act will be repealed. This gives effect to EU law and requires the UK to interpret domestic legislation in a manner compatible with those laws – as interpreted by the European Court of Justice “ECJ”.  The Withdrawal Act 2018 provides that laws which are derived from the EU will continue to have effect.  So, for example, TUPE and the Working Time Regulations will stay as they are (for now).  

But, this guidance makes clear that there will be some changes to current protections relating to employer insolvency and European Works Councils.

Here's the detail:

Employer insolvency:  Currently, UK and EU employees working in the UK are protected under the Employment Rights Acts 1996 and Pension Schemes Act 1993  implementing the Insolvency Directive, with procedures in place for making claims in the case of employer insolvency. Similarly, UK employees working in an EU country are protected by the laws of that country.  

After we exit, UK and EU employees that work outside the UK in an EU country for a UK employer may still be protected under the national guarantee fund established in that country. However, this may not always be the case, as there are variations in how each EU country has implemented the guarantee.

European Works Councils:  Currently EU law allows for workers to request, in certain circumstances, that their employer establishes a European Works Council to provide information and consult with employees on issues affecting employees across two or more European Economic Area states. These rules are set out in the European Works Council Directive. The statutory framework that applies to European Works Councils would require a reciprocal agreement from the EU for them to continue to function in their present form within the UK.

After we exit, no new requests to set up a European Works Council or Information and Consultation procedure can be made (although applications submitted before 29 March 2019 will be allowed to proceed).

So, workers have nothing to fear then?

Despite the reassurances contained in this guidance, it is possible that established worker rights will, over time, be reduced.  

Mrs May has said that her government will continue to protect and enhance the rights people have at work.  But her position looks vulnerable and a new PM may take a different view.

Need more information?

Please contact our expert, Sybille Steiner on 44 (0)207 421 3969 or by email: sybille.steiner@irwinmitchell.com

Sybille's profile is available here

This notice informs businesses, workers and citizens of the UK’s plans to continue workplace protections in the unlikely event that the UK leaves the EU in March 2019 with no agreement in place.”