Brexit could risk “legal and commercial chaos” and would cause years of uncertainty for employers and workers, says leading QC

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7 April 2016

An independent legal opinion published today (Thursday), warns of years of uncertainty for workers and employers if the UK votes to leave the European Union.

The legal opinion, commissioned by the TUC from Michael Ford QC of Old Square Chambers, identifies the dangers of Britain leaving the EU for working people and their rights at work. It lists the rights that would be most at risk of being diluted or scrapped after Brexit, and it considers the mechanisms for disapplying EU workplace laws in the UK.

Michael Ford QC’s legal opinion says that the process would not be quick or easy, noting “there is no precedent for the kind of radical overhaul of laws which would potentially flow from Brexit”. And he says that simply repealing the European Communities Act 1972, as some Brexit supporters appear to advocate, is an “almost unimaginable” course of action, which would lead to “legal and commercial chaos”.

More likely is a lengthy transition in which the government could pick and choose which EU rights to dilute or scrap – as some prominent supporters of the Leave campaigns such as Lord Lawson and Lord Stevens appear to want. This would create long-term uncertainty and confusion for both employers and workers, and it could result in workers losing many hard-won rights at work.

Michael Ford QC’s legal opinion states: “All the social rights in employment currently required by EU law would be potentially vulnerable”. He lists those rights that he believes are most at risk post-Brexit from a government with a deregulatory agenda. They include rights to properly-paid holidays, protections for agency workers, health and safety protections, and protections from some forms of employer discrimination – such as compensation rates, and protections for pregnant workers and older workers.

The legal opinion also notes that, regardless of whether the UK government were to choose to retain any EU-guaranteed worker protections, workers would no longer be able to seek redress from the European Court of Justice (ECJ).

The ECJ’s rulings make sure all workers can benefit from EU-guaranteed workers’ rights. A notable ECJ ruling in 1982 extended equal pay rules to include equal pay for work of equal value, benefitting millions of women workers. Michael Ford QC notes that if the government opposes a decision of a domestic court, it can change the law, adding: “I very much doubt, for example, that the government would have stood by had the domestic courts interpreted equal pay laws in the way the ECJ has done.”

In the opinion, Michael Ford QC further comments that "It is easy to contemplate a complete reversal of the gradual increase in social regulation protecting workers which has taken place since the 1960s".

Commenting on Michael Ford QC’s independent legal opinion, the TUC General Secretary Frances O’Grady said:

“Voting to leave the EU is a big risk for everyone who works for a living.

“Brexit would mean working people are haunted by years of uncertainty, as rights like paid holiday, parental leave and equal treatment for part-timers and contract workers could be stripped away over time.

“The EU guarantees these rights, but generations of trade unionists fought for them. If we lose them because of Brexit, it could take generations to get them back again.

“The biggest cheerleaders for Brexit think that your protections at work are just red tape to be binned. Bad bosses will be rubbing their hands with glee if Brexit gives them the chance to cut workers’ hard-won protections.”

NOTES TO EDITORS:

1. The legal opinion published today was commissioned by the TUC and is the independent legal opinion of Michael Ford QC. A full copy can be found for download at the bottom of this page.

2. Michael Ford QC’s legal opinion suggests that, based on past history and extant policy documents, the workers’ rights most vulnerable to repeal are:

  • Collective consultation, including the right for workers’ representatives to be consulted if major changes are planned that will change people’s jobs or result in redundancies (as have been used in recent major announcements in the steel industry).
  • Working time rules, including limits on working hours and rules on the amount of holiday pay a workers is entitled to.
  • EU-derived health and safety regulations.
  • Transfer of Undertakings (TUPE), i.e. the EU-derived protections to the terms and conditions of workers at an organisation or service that is transferred or outsourced to a new employer.
  • Protections for agency workers and other ‘atypical’ workers, such as part-time workers.
  • Current levels of compensation for discrimination of all kinds, including equal pay awards and age discrimination.

See paragraphs 3 and 107 of the opinion for an overview, and paragraphs 27 to 80 for full details.

3. Michael Ford QC biography: Michael became a QC in 2013 and is a member of Old Square Chambers. In 2015 he was appointed Professor of Law at the University of Bristol. He has almost 50 reported cases, acting for unions, workers and employers, including cases in the ECJ and before the European Court of Human Rights. His principal area of practice is labour law – both individual and collective – including areas such as equal pay, industrial action, working time and trade union law. He was awarded Employment Silk of the Year at the Chambers Bar Awards in 2015 and he was Employment Junior of the Year at the Chambers Bar Awards in 2012. His work also includes judicial review, human rights, data protection, health and safety and public inquiries.

4. Many of those campaigning for Leave, such as Lord Lawson and Lord Stevens, would like to scrap EU protections. For example, writing for a national newspaper in February, the-then Vote Leave chairman and current member of the campaign committee Lord Lawson, said that after Brexit the UK must consider which EU laws to accept, repeal or amend – and goes on to describe many of them as “costly, unnecessary and undesirable”. The full article can be found at: www.telegraph.co.uk/news/newstopics/eureferendum/12162009/Britain-outside-the-EU-would-stand-tall-as-a-free-and-prosperous-nation.html.

Lord Lawson was chairman of Vote Leave from 3 February 2016 until 13 March 2016, when he joined the Campaign Committee. See: www.voteleavetakecontrol.org/gisela_stuart_to_chair_vote_leave_campaign.

It is a view shared by Lord Stevens of the rival Brexit campaign Grassroots Out (www.express.co.uk/news/uk/644832/Grassroots-Out-unite-Ukip-Leave-EU-cross-party-campaign-group), who said in Parliament that the UK could scrap many EU protections if it left the EU. Lord Stevens of Ludgate is a leading political supporter of Grassroots Out, and his speech in Parliament on 24 October 2013 is available at: www.theyworkforyou.com/lords/?id=2013-10-24a.1183.2&s=speaker%3A13384#g1209.0.

5. Some Brexit advocates have called for the simple repeal of the ECA 1972. Lord Lawson’s full article can be found at: www.telegraph.co.uk/news/newstopics/eureferendum/12162009/Britain-outside-the-EU-would-stand-tall-as-a-free-and-prosperous-nation.html. The legal opinion sets out that simple repeal of the ECA 1972 would result in many workers’ rights being revoked overnight, potentially including rights like paid holidays, protections for workers whose jobs are contracted-out and for people with agency contracts, and protections against unsafe workplaces.

6. All TUC press releases can be found at www.tuc.org.uk. Follow the TUC at @The_TUC and the TUC press team at @tucnews.

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