UNISON Lords Report stage EU (Withdrawal) Bill briefing 18 April 2018
UNISON has campaigned for three priority areas to be amended in the EU Withdrawal Bill:
Retaining the existing framework of employment and human rights/equality laws, environment, health and safety, consumer standards and public procurement regulations as we leave the EU
Ensuring that in the future these rights and protections are not weakened and those UK standards, laws and regulations do not fall behind those of our European partners
Ensuring Parliament can fully scrutinise any changes to workers’ rights – including employment and human rights/equality laws, environment, health and safety, consumer standards and public procurement regulations
UNISON has therefore supported amendments which:
Rule out the use of delegated powers in the Bill to amend employment and human rights/equality laws, environment, health and safety, consumer standards and public procurement regulations
Ensure that any future changes to employment and human rights/equality laws, environment, health and safety, consumer standards and public procurement regulations would require an Act of Parliament, and therefore ensure Parliament can fully scrutinise and decide on any proposed changes
Ensure that UK courts have regard to both existing and new ECJ decisions once the UK leaves the EU
Retain the EU Charter of Fundamental Rights as part of UK law
Ensure that individuals can continue to bring free-standing legal challenges in UK courts on the basis that UK law breaches the principles of EU law
UNISON is a member of the Repeal Bill Alliance which brings together 80 civil organisations to ensure that the EU withdrawal Bill is fit for purpose. UNISON believes that in its current form our fundamental social and civil rights, standards and principles are not protected nor are the hard-won devolution settlements.
We therefore ask Peers to prioritise support for the amendments set out in the Repeal Bill Alliance briefing to Peers.
UNISON Priority support for amendments that protect UK employment rights
UK Employment rights could be weakened, ossified or diverge after any Transition period ends, currently agreed at December 2020. Workers must not pay for Brexit – through the weakening of hard won employment and trade union negotiated rights:
1) The EU (Withdrawal) Bill needs to be amended to prevent Henry VIII (Executive) powers that could weaken or remove rights after transition
2) Any future EU UK free trade deal must not go ahead without any alignment or a ‘regression clause’ to protect those rights
Which EU standards for the protection of workers would be threatened by the Brexit?
Key health and safety standards: The Health and Safety at Work Act predated EU rules. But EU standards have led to the introduction of broad duties on employers to evaluate, avoid and reduce workplace risks. EU Directives have also led to safeguards in high-risk sectors like construction; addressed workplace risks such as musculoskeletal disorders, noise, work at height or with machinery; and provided safeguards for workers, such as new or expectant mothers and young people. The number of worker fatalities in the UK has declined significantly since EU directives were implemented.
Working time rights: Although UK workers can opt-out of the maximum 48-hour week, since the Working Time Directive (WTD) was implemented in the UK nearly a million fewer workers are working excessive hours. Around 6 million workers also secured rights to paid holidays, with around 2 million getting paid holiday for the first time, including many low-paid part-time women workers. Thanks to the WTD, many in insecure work, including agency workers, freelancers and those on zero-hours contracts, for the first time secured the right to holiday pay.
Holiday Pay: In 2014, the UK Department for Business, Innovation and Skills estimated that the recent holiday pay CJEU cases (Stringer and Pereda cases) cost the UK economy in excess of £100 million per year, mostly related to additional absences from work. Clearly that money will be going to workers – but if UK employers don’t have to pay, but EU employers are required to there is a potential competitive advantage.
Maternity and pregnancy rights: EU law has improved protections for pregnant women and new mothers, including day one rights to unfair dismissal rights and protection from discrimination. Pregnant women have also secured rights to paid time off to attend ante-natal appointments.
Rights for parents and carers: Due to the Parental Leave Directive, parents can take up to 18 weeks’ unpaid leave to care for a child. 8.3 million working parents qualify for this right in the UK. The right is used most by single parents who find balancing paid work and care most difficult and who are most likely to face barriers to employment. Around one in five single parents rely on this leave each year. The Directive also provides a right to reasonable time off to deal with family or domestic emergencies. This right is used by one in four working parents and three in ten carers each year.
Equal pay: Thanks to EU law, women in the UK secured the right to equal pay for work of equal value which is key to tackling the gender pay gap. EU equal pay law also resulted in part-time women workers gaining access to occupational pensions.
Protection from discrimination: The UK had race, sex and disability discrimination laws before the EU required them, but EU law still led to improvements. For example, it led to the removal of the exemption for small businesses to discriminate on grounds of disability and ensured victims of discrimination receive proper compensation.
The EU Framework Equal Treatment Directive introduced the first rights equality on grounds of sexual orientation, religion or belief and age in the UK.
Equal treatment rights for part-time, fixed-term and agency workers have created significant benefits for UK workers. It was estimated that around 400,000 employees benefitted from equal treatment rights for part-time workers (around three quarters of whom were women). In 2000, the UK government estimated that complying with equal treatment rights for part-time workers would amount to £14.7 million per year. The Fixed Term Employee Regulations led to significant improvements in pay and conditions and better access to occupational pensions for many temporary staff in the UK, particularly in the education sector. Temporary staff are also no longer required to waive their unfair dismissal rights. In 2001, the estimated costs to employers of complying with these regulations would amount to £142-289 million.
The Agency Workers Regulations also led to some agency workers receiving a pay rise and improved holiday entitlements. However, problems with the so-called ‘Swedish derogation’ in the UK mean many agency workers lose out on pay, with some earning up to £135 a week less than directly employed staff doing the exact same job. In 2009, the UK government estimated that the costs of complying with the Temporary Agency Worker Directive, including with a 12-week qualifying period would amount to an average annual cost of £1,775 - £1,935 million. Had the UK adopted a day one right to equal pay the average annual cost was estimated to be £4,154 - £4,594m. The CBI own estimates estimated in 2011 that the UK Agency Worker Regulations would cost UK business £1.8 billion to comply with. However, the actual costs in the UK are likely to be far lower due to the wide spread use of the Swedish derogation.
Protections for outsourced workers: EU TUPE rights introduced important protections for workers affected by contracting out, company buy-outs and even the privatisation of public services. Without TUPE rights employees could be dismissed, have their pay and conditions cut, or be placed on zero-hours contracts in place of their permanent secure jobs. It is estimated that nearly 1 million (910,000) people benefit from TUPE rights every year.
Rights to be consulted on collective redundancies, and for unions to present an alternative to employers, thereby saving jobs. According to Workplace Employment Relations Survey 2011, in 40 per cent of workplaces that engaged in redundancy consultations, managers’ original proposals were altered, leading to fewer redundancies, and extra help and pay for individuals facing redundancy. Weakening these rights post-Brexit could mean that it is cheaper and easier to lay off UK workers. This would also put UK workers at further risk of losing out when decisions are made by transnational companies about where to locate plants and jobs.
Protections for migrant and posted workers: migrant workers are guaranteed equal treatment whilst posted workers who work temporarily in another country are guaranteed core workplace rights.
Transparency over terms and conditions of employment: This right existed since 1963 but was improved in 1993 following the adoption of the EU Written Statement Directive. For the first time, employers were required to provide details of relevant collective agreements. They were also required to issue the statement within two months as opposed to the previous 13 weeks and to provide detailed information about pay and conditions, making it easier for employees to enforce their rights. Requirements on employers to notify staff of changes to terms and conditions were also significantly tightened.
Remedies and sanctions: EU membership has also substantially strengthened the remedies for employment law breaches. Under UK law, employees are generally only entitled to be compensated for any losses they have incurred. UK legislation also often limits the compensation which can be awarded to an individual. For example, in 2013, the UK government reduced the new cap for compensation in unfair dismissal cases based on annual earnings, which penalised low paid, part-time workers. In contrast, EU law generally provides that any sanctions must be ‘effective, proportionate and dissuasive’ and should have a ‘real and deterrent effect on employers’. This resulted in the previous UK cap on compensation for discrimination claims being removed. EU law also requires that remedies for claims involving EU rights should be equivalent to those in similar domestic actions. This led to the limits on back pay compensation in the Equal Pay Act being increased from two to six years.
Since the mid-1970s, EU employment law has played an important role in protecting working people in the UK from exploitation and in combating discrimination. Unlike in many other western EU member states, where domestic social policy and collective bargaining frameworks provide a higher level of protection which exceeds the EU minimum standards, EU social policy has played a central role in raising employment standards in the UK.
Indeed, employment rights derived from the EU have also provided a counter-balance against pressure for the UK to adopt a US-style system of employment relations based on flexible working practices, a hire-and-fire culture and the absence of statutory employment rights.
UNISON priority amendments:
1. Amendment to clause 17 tabled by Lord Hannay of Chiswick, Lord Beith, Lord Goldsmith and Baroness Altmann.
This will help to strengthen retained EU law into a new category of law that will give weight to the question as to whether these laws can be legally repealed by statutory instrument as opposed to more sovereign and democratic use of primary legislation.
2. Amendment to Clause 3 Baroness Hayter of Kentish Town, Lord Warner, Baroness Smith of Newnham and Lord Kirkhope of Harrogate.
3. Amendment to Clause 5 tabled by Lord Pannick, Lord Goldsmith, Baroness Ludford and Lord Deben
To ensure that fundamental rights are protected including the EU Charter of Fundamental Rights) in the bill.
4. Amendment to Clause 4 tabled by Baroness Brown of Cambridge and Lord Deben
Ensures both the protection of rights and standards as well as the status of retained EU law.
5. Amendments to clause 7 and 8 tabled by Lords Lisvane, Tyler, Goldsmith and Cormack
Would replace the minister considers “appropriate” with “necessary”.
6. Amendments to clause 7 by Lord O’Donnell, Lord Newby, Baroness Hayter of Kentish Town, Lord Bowness
Would remove the ability to establish public authorities.
7. Amendment to Clause 9 which laid by Lord Lisvane, Baroness Hayter of Kentish Town, Lord Tyler and Baroness Wheatcroft.
Would remove the power to modify the Act itself.
8. Amendment to Schedule 7 tabled by Lord Lisvane, Lord Norton, Baroness Smith of Basildon and Lord Sharkey.
To enhance the scrutiny procedure of secondary legislation.
9. Amendment to clause 9 on parliamentary approval of the deal negotiated with the EU, tabled by Viscount Hailsham, Lord Hannay of Chiswick, Baroness
Hayter of Kentish Town and Lord Wallace of Saltaire
To strengthen parliamentary sovereignty.
10. Amendment to Clause 6 by Lord Pannick, Lord Goldsmith, Lord Wallace of Tankerness and Viscount Hailsham
To provide clearer guidance for courts and tribunals on the role of EU case law after exit day
UNISON evidence in support of priority amendments:
Three examples of how the government since 2010 has attempted to weaken UK rights, by Statutory Instrument (SI) which have only been limited through protection by EU laws:
a. Government use of Statutory Instruments (SIs) to de -regulate rights - 2014 TUPE Regulations
Hardy v Meter U case
An employer will be unfairly dismissed if the sole or principal reason for his dismissal is a reason connected with the transfer that is not an economic, technical or organisational reason entailing changes in the workforce
Case was won on the basis that, a post transfer change of location could not be a valid defence for dismissing a TUPE transferred employee
‘A change of location’ was not in the definition “Economic Technical or Organisational reasons entailing changes in the workforce”. Therefore the workers were judged to have been unfairly dismissed
In 2014 the government changed TUPE Regulations, so that “entailing changes in the workforce” now include a change of location.
This deliberately broadened the scope to increase employers rights to call for fair dismissal claims for UK workers against the original protections granted to UK workers
b. UNISON victory scrapping Employment Tribunal (EAT) Fees 2017
Government introduced EAT fees by a SI - this was also in itself criticised by the Supreme Court (after the 3rd final victory case)
Won by EU General Principles but more importantly UK Access to Justice
The protections offered by EU law, insofar as they were relevant, offered a form of guarantee of rights — even in the face of parliamentary sovereignty
The underpinning of the ECJ guarantee of UK ‘EU aqcuis rights’ will go along with the ‘supremacy of EU’ law after 2020 as it moves into retained UK law
Post Brexit UK domestic constitutional law will now become the focus where we safeguard fundamental rights and rule-of-law values
However if these laws remain SIs it will be easy for the government to change and hope that they are not challenged – which in the EAT case took UNISONs determination, time and funds to finally win for all UK workers
Although the British government is unlikely to start a bonfire of all workplace rights immediately, there is a risk that Ministers will adopt a salami slicing approach as soon as the transition period (Dec 2020) is over - limiting, hollowing out or even removing specific workplace rights which are unpopular with those on the right and some employers’ organisations.
Detailed scrutiny of the Bill reveals that it fails to provide any genuine protection for these rights: it does not contain a non-regression clause; the EU Charter of Fundamental Rights is not retained as a principle of EU law which will continue to apply; individuals would no longer be able to bring a case in UK courts on the basis that UK law breaches EU law and won’t be able to seek damages from the government; it ends the jurisdiction of the CJEU and empowers Ministers to amend, repeal or weaken retained EU rights without full parliamentary scrutiny.
Keir Starmer’s quote in the HLCC report makes this point:
Almost of all the workplace rights, from memory, are in delegated legislation. That has not mattered much until now, because they are underpinned by our EU membership. Nobody particularly felt that their workplace rights were vulnerable, because everybody knew that unless and until either we left the EU or the EU provisions changed, although it was a lesser form of legislation, they were in truth enhanced or ring-fenced. If, through this process, they become ordinary delegated legislation, those rights can be removed by provisions other than primary legislation. The ring-fencing just falls apart with the designation. Tied up with what seems like quite a narrow legalistic point about designation are a whole series of possible constitutional consequences, which are very, very wide-ranging.
(2) Any future EU UK free trade deal must not go ahead without any alignment or a ‘regression clause’
As a response to these concerns UNISON is glad to see that the draft EU council draft guidelines on the framework for the future EU UK Agreement sets out that there must be some alignment:
9. Given the UK's geographic proximity and economic interdependence with the EU27, the future relationship will only deliver in a mutually satisfactory way if it includes robust guarantees which ensure a level playing field. The aim should be to prevent unfair competitive advantage that the UK could enjoy through undercutting of current levels of protection with respect to competition and state aid, tax, social, environment and regulatory measures and practices. This will require a combination of substantive rules aligned with EU and international standards, adequate mechanisms to ensure effective implementation domestically, enforcement and dispute settlement mechanisms in the agreement as well as Union autonomous remedies that are all commensurate with the depth and breadth of the EUUK economic connectedness.
European Council (Art.50) (23 March 2018) - Draft guidelines https://g8fip1kplyr33r3krz5b97d1-wpengine.netdna-ssl.com/wp-content/uploads/2018/03/European-council-Art.50-23-March-2018-Draft-Guidelines-1.pdf
In addition to this the need for a ‘non regression’ clause to prevent the UK from de-regulating and leading the UK into a global race to the bottom has also been highlighted:
On the 10th April Barnier said:
The eventual post-Brexit trade deal between the EU and U.K. should include a “non-regression clause” to prevent Britain from backsliding on environmental and other standards to gain a competitive advantage over the bloc
A future partnership after the U.K. leaves the EU next March “must include precise provisions” to ensure a level playing field
A non-regression clause would lock in regulatory standards today, but not prevent the U.K. from refusing to follow new, potentially tougher, EU standards in the future. This is why there also needs to be a level playing field mechanism so that in relation to employment regulations and standards the UK keeps up with EU standards in the future.
UNISON is particularly concerned about the current government’s position to seek a free trade agreement (FTA) with the EU. UNISON has grave concerns on existing EU FTAs with other trading partners that do not allow for a level playing field, particularly on social issues. An FTA between the EU and the UK would not live up to the expectations of workers both in the UK and in the EU27.
Public Procurement and labour standards at risk in a future EU UK Trade Bill
UNISON has also concerns around the future of public procurement (PP) and in general privatisation and deregulation of health services in future trade deals if we enable the government to move away from EU Regulations. The government has announced that it is removing Public Procurement as a UK devolved issue and going to retain it as a Westminster ‘reserved matter’ until a UK common framework is developed.
Essentially the UK government could use any new regulatory framework on PP, both domestically and in new trade deals, to open up health services to SE, Mutual’s or any other non public delivery vehicle that provides worse terms and conditions than in the NHS.
The first negotiations on the “framework and scope of the future relations” will begin in the next few weeks. UNISON would like to have confidence that the EU Withdrawal Bill provides the safeguards that protects our rights and standards that is currently being offered by the EU in the form of a mechanism for ‘necessary alignment’ and a ‘regression clause’.
A further UNISON brief on concerns for the future of UK public procurement regulations will be sent to peers in the near future.
For further information please contact:
Allison Roche UNISON Policy officer
Telephone 020 7551 5457