As we fast approach the triggering of Article 50, and ultimately our departure from the European Union, we have heard much from the Government about a world of new opportunities, new trade deals and new border controls – but in contrast we are promised the same old employment laws. The Government has talked about preserving the body of employment law rights that have emanated from Europe and that the pan European legislative framework and body of decisions from Strasbourg have bestowed upon us here in the UK. That seems to presume that we in the UK believe that European legislature and judges, accused of getting so much so wrong and so often, got everything in employment just right. So can we dare to question whether any of those European rights are wrong for the new era that we are entering in the post-Brexit age?

The body of European employment legislation can usefully be grouped into four categories: Business Organisation (TUPE & collective redundancies) Modern Business Practices (fixed term and agency workers’ rights), Social Policy (discrimination and equality provisions), and Individual Protection (working time and data protection). The protection given to workers in these areas are wide ranging and welcomed by trade unions and other such interest groups. Labour backbencher Melanie Onn has previously told The Independent: “There is a great risk that without fundamental workers’ rights, which come from the EU, we will see an explosion of temporary, insecure jobs and zero hour contracts.”

These rights guarantee everything from paid time off to continuation of employment when there are fundamental business changes by acquisition, and change of service contracts. However, we know from experience in representing employers in hard pressed industries that these rights are not always welcomed by business. Whilst few in business would advocate a complete free for all, they know from experience that sometimes these acquired rights can produce odd results or have anti-competitive effects. For instance, near total prohibition from harmonising terms and conditions (even to the benefit of some employee groups) can cause financial, administrative and employee relations challenges.

It seems all the more strange that the UK Government should lack the confidence to question whether Europe got it all just right, when the UK was in fact a pioneer in creating a body of employment rights and protections in what – compared with today – was a thriving industrial age. The UK was amongst the first to introduce protections against inequality of pay between men and women (Equal Pay Act 1970); was amongst the first to prohibit discrimination on the grounds of sex and race (Sex Discrimination Act 1975 and Race Relations Act 1976); and was sufficiently enlightened to introduce a body of collective rights. Some may rightly question whether or not Europe had anything to teach the UK in terms of developing a body of employment laws to curb the greater evils and excesses of unscrupulous employers.

Is it right to question whether the body of European employment legislation has gone beyond curbing those excesses and reached a tipping point that has instead curbed the opportunities for businesses to manage their own affairs in the most effective and efficient way? Is it right to question whether the scope of protections afforded in our four categories have gone beyond curbing those evils and excesses? Is it right to question whether there is a simpler and fairer way to achieve the proper balance of worker protection and opportunity for business? Is it right to look at whether the body of European employment legislation is right for Britain and fits our social policy agenda? Arguably, we have seen in recent days the anomalies that European employment law can create. It was the European legislature that introduced a protection from religious discrimination. It was the European Court in banning the wearing of hijabs and other religious symbols that appeared to assert the right of employers to regulate their own affairs. Is it wrong to examine these apparent contradictions in the post Brexit age?

In a future article we will look at what a manifesto for Britain’s employment community might look like. We will look at where there are opportunities for change. We will contemplate the apparently unthinkable….did Europe go too far or get everything ‘just right’ like baby bear’s porridge?





Darren Maw is a barrister and managing director of employment law and HR firm Vista