There was only a week to go before the end of the Brexit transition period when the EU-UK Trade and Co-operation Agreement was agreed on 24 December 2020 (and signed on 30 December 2020). The Agreement is one of three main agreements setting out details of the UK's future relationship with the EU and it extends to over 1,200 pages. However, the UK Government has published a more palatable summary at just 34 pages. We summarise this below with regards to employment law and workers' rights.
The Agreement is divided into seven parts but it also contains numerous annexes and protocols. In the context of Employment law and workers’ rights, we need to look at Part Two: trade, transport, fisheries and other arrangements and within Part Two, Title XI: Level playing field for open and fair competition and sustainable development.
The issue of a level playing field was one of the most protracted parts of the negotiations and the purpose of having common standards is to ensure that neither of the parties gains a competitive advantage over the other. Within Title XI, Chapter 6 refers to labour and social levels of protection in the following areas:
- (a) fundamental rights at work;
- (b) occupational health and safety standards;
- (c) fair working conditions and employment standards;
- (d) information and consultation rights at company level; or
- (e) restructuring of undertakings.
Chapter 6 states that each Party can “set its policies and priorities” to determine the labour and social levels of protection it deems appropriate. In other words, there is no obligation for alignment. Significantly, Chapter 6 also includes the statement that a Party “shall not weaken or reduce, in a manner affecting trade or investment between the Parties, its labour and social levels of protection below the levels in place at the end of the transition period, including by failing to effectively enforce its law and standards.”
Some commentators have expressed concern about the difficulty in proving whether a change in labour and social levels of protection does in fact affect trade and investment. Chapter 6 is not subject to the Agreement’s main dispute resolution mechanism but instead the process will involve a request for consultation with the aim of reaching a mutually satisfactory resolution of the matter. Where consultation has not worked, a panel of experts will be convened to examine the issue.
Following the conclusion of the Agreement, the Prime Minister gave an interview to the Sunday Telegraph and stated categorically that there would be no regression on workers’ rights. Any large scale changes to Employment law and workers’ rights therefore seem unlikely at this stage.
Irrespective of the Agreement, it is important to remember that the European Union (Withdrawal) Act 2018 converted EU law into UK law as it stood on “Exit day” (31 January 2020) and until the end of the transition period and it is up to Parliament to make any future changes. Judgments of the ECJ are part of “retained EU law” and any judgments handed down before the end of the transition period remain binding on UK courts and Tribunals but can be overruled by the UK Supreme Court and Court of Appeal where it appears right to do so. As for post-Brexit case law, the UK courts will not be bound by it but they can have regard to it, if it is likely to be relevant.
How can we help?
Our employment lawyers have vast experience advising employers and will be able to assist if you have any queries regarding the Agreement and workers’ rights. All organisations will vary so please contact our employment team for legal advice. Please read our immigration article for an update in that area.
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