To the layperson, the unceremonious sacking of 800 P&O Ferries workers may look like a consequence of Britain leaving the EU, with any legal action by the trade unions turning into the first big test of workers’ rights post-Brexit.
Despite Boris Johnson’s assurances that Britain’s departure from the EU would be better for UK workers, there have been fears it would be seen by the government as an opportunity to erode workers’ rights in a bid to increase competitiveness.
However, the reality is that, so far at least, there has been no derogation from EU employment rights and the scope for any backsliding is limited. Contained within the trade and cooperation agreement with the EU, there is a non-regression clause, under which Britain agreed not to reduce employment rights below the standards existing on 31 December 2020 in a manner that would affect trade or investment. The EU could take retaliatory measures such as tariffs if trade or investment were affected and could also legally challenge the regression before a panel of experts.
John Bowers QC, a leading employment barrister and principal of Brasenose college, Oxford, said: “Although the government’s huffed and puffed about changing the law, so far they haven’t. The straightforward statutory redundancy law is purely UK, it’s the redundancy consultation [law] that is EU-related and we haven’t changed that.
Andrea London, a partner in law firm Winckworth Sherwood’s employment team, said Brexit was a “red herring”. She said the EU collective redundancies directive was implemented in the UK by a primary act of parliament which “gold-plated” (went beyond) the EU legislation, adding: “Given its longevity and trade union backing, it is firmly entrenched in the UK employment law environment, and there inevitably would be considerable opposition to any repeal or paring back of the protections in this act due to leaving the EU.”
When there were reports – denied by the government – that proposals were being considered to lower employment rights, those plans did not mention redundancy rights but rather an end to the 48-hour maximum working week, changes to rules about breaks at work, and removing overtime pay when calculating certain holiday pay entitlements.
Where Brexit has had an impact is in the courts, although its effect will be limited. When the UK was a member of the EU, the country’s highest appeal court could ask the European court of justice for an opinion on how to interpret EU law but post-Brexit it will no longer be able to do this for employment cases nor most others.
However, most people bringing employment tribunals will probably be oblivious to the changes, and given that the P&O Ferries case involves rights conferred directly by UK laws it is a moot point and will not have any impact on legal action brought by trade unions against the ferry operator.
Regardless, the chances of the case going to the supreme court seem remote at this stage if it is a straightforward matter legally of the company not having consulted with workers prior to the redundancies, unless there is a dispute over the jurisdiction of the employment contracts.
Bowers said what had happened was not a result of Brexit but of insufficient legal protection. “The only remedy is a monetary one,” he said. “What there really should be is an injunction to stop people dismissing without consultation.”
