The UK employment landscape is facing big challenges from Brexit. The established social partnership process of developing employment law at EU level will be gone, and assuming the UK Government will not be able to politically entertain any Brexit outcome, that leaves the UK subject to future EU employment regulation. There will be a vacuum of dialogue at that high level.
Trade unions have, for decades, used the EU very well to help drive the worker rights agenda in conjunction with EU trade unions, and in future that avenue of influence will be gone. How will unions achieve their objectives at national level?
Best interests of employees in unionised businesses are served by constructive relationships at the collective level. The benefit of the EU model for all employees has been a supranational employer/union partnership concept, that many businesses do indeed cascade down to structured information and consultation in the workplace.
The modern workplace is going through major change anyway with disruptive technologies, less job security for many, the gig economy, agile working, and various other challenges to workforce terms and practices. So regardless of Brexit, there is good reason to reinvent the social partnership model for the UK with long term good employment relations in mind.
Employers need to redouble their efforts to improve employee engagement to try and preserve their workforce as skills shortages bite. Already some UK based companies are having to hold workshops for staff from other EU countries to try and address their worries over Brexit, and reassure them of their future in the UK. The last thing UK businesses need is to lose good existing employees while also failing to recruit enough.
A sensible approach to incoming workers needs to be developed to meet the needs of UK businesses who need to import adequate labour to thrive, and to develop their global trade opportunities with some international movement both ways of skilled employees as an essential element of building relationships with key markets.
One of the biggest dangers threatening workers’ rights is that some will be thinking about a shopping list of things they would like to change in certain EU laws that have been troublesome and costly. A fairly obvious example up for debate is the agency worker regulations, which force employers to match permanent employee pay rates after 12 weeks. In addition to this, they could try to remove or amend the Working Time Regulations, which have always been contentious with UK employers. But the problems have been compounded by court rulings about extra holiday pay obligations. Furthermore, we have the old chestnut of the Transfer of Undertakings Regulations, which employers are likely to want mainly left alone for certainty – however many employers may want easier alteration of employment terms after a transfer.
Changes like these would not be hard to push through legally, and unions may protest in vain as the issues may not galvanise strong enough member support. Hence, while in the short term worker rights may not change, there could easily be longer term erosion of worker rights.
The UK track record on worker rights is not so good since access to justice in the employment tribunals was largely destroyed in 2013 for most individual claimants by introduction of excessive tribunal fees, which can be as high as £1,200 for a claim heard at tribunal. There is a long running challenge to these high fees by the trade union Unison, recently heard in the Supreme Court. The fees are argued to be disproportionate, discriminatory and in conflict with the human right of access to justice. It is a simple point that worker rights are academic if they cannot be enforced by ordinary people.
Overall the EU partnership idea of talking to each other about legal reforms has actually worked rather well for a long time, and has given much benefit to UK employees, though this is not widely appreciated.
There is need for getting everyone to work together to build a better future, and a good start will be to reassure UK workers that employment rights and modern work practices will, in future, be addressed within a national employee relations collaborative model, which also may demonstrate to our EU friends that the UK still sees value in the social partnership concept, if only from across the Channel.
Michael Sippitt is the chairman of Clarkslegal