Will non-regression clauses protect UK workers after Brexit?

Employment | 26th October 2018

It could be a little risky reporting this, as by the time you reach the end of this article things could have all changed, such is the nature of the twilight hours of the Brexit process. But the Institute for Public Policy Research (IPPR) has issued a new warning that even if the UK and Europe do shake hands on a deal for Brexit, British workers’ rights could still be at risk.

While it’s fully expected that the UK and the EU will agree on common minimum working conditions and standards as part of the deal (if there is a deal), the IPPR is still concerned that the deal’s non-regression clauses that are supposed to ensure there is no reneging on existing workers’ rights once the process is completed are not robust enough to protect workers in many different sectors.

They’ve come to this conclusion after looking at similar trade deals struck between the EU and other locations such as Peru, which certainly saw a reduction in rights after the contracts had been signed. Concerns are, though, that any re-examination of the non-regression clauses in the current Chequers Deal could mean that the whole deal falls flat on its face, jeopardising workers’ rights even further.

Throwing a new rule book into the arena

Instead of non-regression legislation, the IPPR has suggested that something a little more robust would offer workers greater assurances that their rights as they exist right now are not going to be eroded as soon as Britain leaves the EU. Their suggestion is a ‘Common Rulebook’ that could turn the UK into a bastion of workers’ rights, surpassing those of Europe and enabling the UK to become (in their words) a ‘leading light’ for the maintenance of fair pay, equal rights, and robust health and safety standards.

A Level Playing Field for Workers

Their report – A Level Playing Field for Workers – draws on research carried out by the IPPR that demonstrates that the vast majority of businesses (both large and small) in the UK are in full support of maintaining the high standards of workers’ rights currently enjoyed by the workforce. Everything from pay, equality and discrimination legislation, holiday pay and working time is included in the proposal. With the continuing spotlight on zero-hour contracts and the employment status of previously ‘self-employed’ delivery drivers, there’s never been a better time in the opinion of the IPPR to solidify the legislation and take it forward post-Brexit.

However much businesses claim to be on the side of the workers, the IPPR is still concerned that without a solid rulebook in place, governance and enforcement of workers’ rights could be weak under the current non-regression clauses, giving big businesses several wide-open loopholes to take advantage of further down the line. For example, the proposed changes (instigated by the EU) to zero-hour contracts could be bypassed if it isn’t in place by the time the UK leaves Europe, while the much-lauded ‘carer’s leave’ entitlement (where relatives can take time off to look after seriously-ill relatives) could also end up toothless and even scrapped entirely.

Don’t rely on the legal system to back up non-regression clauses…

Agreeing in principle to adopt new EU legislation while the Brexit deal is being thrashed out in another room means that non-regression legislation is effectively useless, giving unscrupulous employers a work-around to avoid implementing perfectly reasonable legislation. There’s little workers could do to pressurise employers to adopt legislation that hasn’t already been grandfathered into the UK’s law books, and as courts will no longer be required to answer to the European Courts of Justice, there’s absolutely no guarantee that the legal system would come down on the side of the workers, either.

Of course, all of this could be moot by the time you’ve finished reading this article, and we could have a robust, alternative method of protecting workers’ rights in place. However, currently, with so much at stake and with the legal tangle of Brexit looking set to tie us up to European legislation long after the Brexit bunting has been taken down next March, workers’ representatives, legal experts in employment law, and Britain’s bosses will be watching very carefully how the non-regression issue plays out.

If you think your rights have been compromised or are being undermined in any way by your employer, talk to a legal expert in employment law for an up-to-date assessment of the current situation, and your entitlements, whether that’s regarding pay, working conditions, or discrimination at work.

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Jane Crosby

Partner, Dispute Resolution

Jane specialises in commercial litigation and employment law acting for both employers and employees in both contentious and non-contentious matters. ...