It was relatively easy to miss that in the week England exited the World Cup and David Davis and Boris Johnson exited Theresa May’s Cabinet, the long-awaited White Paper on our exit from the EU was published.
Long promised, the White Paper, The Future Relationship between the United Kingdom and the European Union, sets out Government’s vision for how we will work together with the EU in the future, culminating from that tempestuous trip to Chequers. Though Theresa May had no doubt hoped that in publishing her proposals for Brexit, it would put an end to the uncertainty and dissatisfaction with how events have progressed since the referendum, the triggering of Article 50 and our negotiations with the EU, those hopes are now starting to look somewhat forlorn, with commentators on both sides of the debate largely regarding it as the worst of both worlds and Labour now pushing ahead in opinion polls in its wake.
The noises from the EU have not been positive (though we still wait for a formal response) and it still seems as unlikely as it ever has that a deal will be reached that meets with approval from both our current Government and the EU. Whilst we continue to hold our breath on that one (or not), there are some important points from the White Paper which highlight the significance that employment will inevitably play in our exit from the EU:
- The proposal aims at striking a “fair and pragmatic balance” for both the UK and the EU, specifically looking at “one that would protect jobs and livelihoods”.
- In the section entitled Open and fair competition, the paper recognises that “commitments on open and fair competition are fundamental to all trading relationships” and it is certainly true that concern about future movement of workers has been a key discussion point through the run-up to and aftermath of the referendum. The UK’s proposals are stated to include “committing to high levels of social and employment protection through a non-regression requirement for domestic labour standards”.
- Paragraphs 121 to 123 expand further:
- Existing workers’ rights enjoyed under EU law will continue to be available in UK law on the day of withdrawal.
- The UK already exceeds EU minimum standards in a number of employment rights areas and is a leader in many others. Given that strong record, the White Paper proposes “that the UK and the EU commit to the non-regression of labour standards”.
What does this mean in practice? On the face of it, it appears to mean that no EU-based laws will be repealed. There had been some speculation that certain pieces of legislation, such as harmonising terms and conditions following a transfer under the Transfer of Undertakings (Protection of Employment) Regulations, agency worker protection under the Agency Workers Regulations and collective consultation requirements in redundancy situations might be relaxed but the White Paper suggests that that would not be the case. It was also thought that the Government might seek to cap compensation for discrimination claims, in the same way as we do currently for unfair dismissal claims, but since the prohibition on doing so stems from EU legislation, that again seems unlikely. Recent decisions of the Court of Justice of the European Union (CJEU) have taken employment laws in a way the Government may not have chosen (for example, the need to factor overtime into holiday pay) but since the White Paper also makes clear that “the UK would commit by treaty that its courts would pay due regard to CJEU case law”, the decisions by which our courts are already bound seem set to stay though future decisions would leave greater accountability with the UK courts.
The proposals of the White Paper suggest that Government has taken on board the concerns of many businesses about the impact of Brexit on the mobility of their workforces and our ability to compete within a challenging recruitment market. Reassurance can be taken from the proposal that all current rights and privileges will remain in place but much as we all pore over the White Paper, it all, of course, assumes a deal is reached and with growing support for a second referendum (of some sort) and growing strength in Jeremy Corbyn’s Labour party, Theresa May’s hopes for certainty may be dashed as quickly as Gareth Southgate’s of repeating Sir Alf Ramsay’s triumph of 1966.
Ellie Hibberd is an employment partner in our Exeter office and head of HRExpress. The Stephens Scown employment team works in partnership with organisations to improve their HR practices and advise on employment issues. To discuss the content in this article or any other HR/employment issue call 01392 210700 or firstname.lastname@example.org.