Removal of workers’ rights in the new EU (Withdrawal Agreement) Bill

On 19 December 2019, the Johnson Government published a revised European Union (Withdrawal Agreement) Bill 2019-20 (‘WAB’). A previous version of the Bill was published in October 2019. The new WAB no longer contains clauses on the protection of EU-derived workers’ rights. In the December 2019 Queen’s Speech, it was announced that protection for EU workers’ rights will be included in a forthcoming Employment Bill. Details of this Bill have yet to be published.

This Insight provides an overview of what the previous clauses would have done, why they have been removed and what this might mean for workers’ rights in the UK.

What did the clauses on workers’ rights do?

A large part of UK employment law is derived from and grounded in EU law. These include issues such as working time, holiday pay, maternity rights and discrimination. As a member of the EU, the UK cannot currently reduce these rights below the minimum level set by EU law – but they can choose to introduce greater rights.

Under the European Union (Withdrawal) Act 2018, these rights will be saved as ‘retained EU law’. These rights will continue to apply after the UK leaves the EU. However, unless there are provisions about maintaining existing workers’ rights standards in a future UK-EU agreement, these rights could be amended or reduced by domestic legislation after Brexit.

Clause 34 and Schedule 4 of the October 2019 WAB would have provided some safeguards for these rights. These safeguards were based on draft clauses published by the May Government in March 2019, following its acceptance of an amendment tabled by backbench MPs.

Broadly speaking, the clauses would have done two things. First, a Minister would have had to consult with businesses and unions about the impact of proposed Bills on workers’ rights. They would then have had to formally state whether the Bill would reduce “workers’ retained EU rights.” Second, the Government would have been required to report regularly on any new workers’ rights adopted by the EU. These reports would have stated whether UK law already recognised rights of the same kind and, if not, whether the Government planned take any steps to keep pace with the new EU rights. Parliament would have had a chance to vote on whether to approve these reports.

These clauses are covered in further detail in an earlier Library Insight, Withdrawal Agreement Bill: Protection for workers’ rights.

What has happened to these clauses?

The December 2019 WAB no longer contains these clauses. Instead, in the December 2019 Queen’s Speech, the Government announced that it would be including clauses on protecting and enhancing workers’ rights in a forthcoming Employment Bill. Speaking on LBC on 17 December, Michael Gove, the Chancellor of the Duchy of Lancaster, said this was in order to “have a straightforward approach to getting Brexit done, to getting that withdrawal agreement through.”

It is not yet clear how the Government intends to protect workers’ rights in the proposed Bill.

The idea of having a separate Bill on protecting EU workers’ rights is not new. When the May Government published its draft clauses in March 2019, these were initially going to be included in a Withdrawal Agreement Bill. However, in May 2019, Theresa May announced that her Government would be introducing a separate Workers’ Rights Bill. That Bill was never published.

It should be noted that the May Government’s Workers’ Rights Bill appeared to be concerned solely with protecting workers’ rights derived from the EU. By contrast, the Queen’s Speech suggests the Johnson Government’s proposed Employment Bill would cover a range of additional employment-related issues (such as the creation of a single enforcement body).

When will the Employment Bill be introduced?

The Government has not yet given an indication of when the Employment Bill will be introduced.

If the December 2019 WAB passes and the Withdrawal Agreement is ratified, there will be an implementation period until 31 December 2020. During the implementation period EU law will continue to apply to the UK. As a result, the UK will not be able to legislate to reduce EU workers’ rights during this period.

The Employment Bill would need to be passed by the end of the implementation period in order to effectively protect workers’ rights derived from EU law.

Will workers’ rights be protected in the future UK-EU agreement?

The EU’s trade agreements with third countries contain ‘level playing field’ clauses on labour standards. These clauses normally prohibit the parties from reducing their domestic labour standards in order to gain a trade advantage. The European Commission stated in 2018 that due to the UK’s geographic proximity and economic interdependence with the EU, stronger ‘level playing field’ commitments would be required in a UK-EU trade agreement. It suggested that the UK and EU should be prohibited from reducing workers’ rights below the levels currently set by EU law, no matter the purpose.

The non-binding Political Declaration negotiated between the Johnson Government and the EU, states that the future UK-EU agreement should have a level playing field clause. It commits to a clause that would maintain “employment standards at the current high levels provided by the existing common standards.”

However, in October 2019, the Financial Times reported that the Government was looking to deregulate workers’ rights post-Brexit. In a House of Commons debate on this issue, Andrea Leadsom, the Business Secretary, assured the House that the Government would not lower workers’ rights as a result of leaving the EU.

Ultimately, the contents of the future relationship agreement will be a matter for the next phase of negotiations.

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About the author: Daniel Ferguson is a researcher at the House of Commons Library, specialising in employment and equality law.