Summary

The recent appointment of a new UK Prime Minister signals a new approach to Brexit negotiations with the EU. There are suggestions that the new administration has different views on the approach to the protection of employment rights post-Brexit.

Brexit: a change of direction on protection of UK worker rights?

The recent appointment of a new UK Prime Minister has signified a new approach to Brexit negotiations with the EU, including potentially in relation to employment matters. A significant proportion of UK employment rights are underpinned by EU law, which raises the issue of whether, and if so how, UK employment law might diverge from that in the EU after Brexit.

Former Prime Minister Theresa May and her administration had given assurances that it would keep the UK employment law framework closely aligned with new EU employment rights post-Brexit. It had proposed that the UK Parliament would consider and vote on mirroring any future EU legislation that strengthens workers’ rights or workplace health and safety standards, and that trade unions and businesses would be given an enhanced role in this process.  

However, new UK Prime Minister Boris Johnson has appointed a new chief Brexit negotiator, David Frost, who appears to take a different view. In an article written shortly before he took up his new post, Mr Frost criticised the idea of the EU being allowed to influence UK labour market rules post-Brexit, and expressed concern over the “EU’s drift towards heavy labour market regulation”.  This could well signal a change in the UK’s willingness to keep pace with the EU on workers’ rights, going forward. 

Separately from discussions about the UK’s approach to future EU legislation, Theresa May’s administration also gave a commitment very early on in the Brexit process not to diminish workers’ existing employment rights when the UK leaves the EU. Since taking office, Boris Johnson has said that UK workers’ right would be protected and also suggested that, where necessary, the UK could enhance employment protections once it left the EU. However, should the UK leave the EU without a deal regulating existing employment rights, the UK would have more freedom to make ‘business friendly’ changes to various existing EU-based employment rights. Such changes could include, for example, the removal of the Agency Workers Regulations, departures from Working Time Directive requirements - in particular in relation to holiday pay - and possibly the imposition of a cap on discrimination compensation.

What is clear is that the recent change in top personnel in the UK government has unsettled long-standing assumptions about the limited impact of Brexit on UK employment law. We look forward to further clarity in this area as Brexit negotiations between the UK and the EU continue.