Opinion: ‘Be wary of hysteria over workers’ rights claims’

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Earlier this week, business secretary Kwasi Kwarteng confirmed that the government was looking at changes to workers’ rights now that the UK did not need to follow EU directives – after having initially denied any such move.

The story was sparked by news reports that some workers’ protections and rules brought in under the EU’s Working Time Directive – including the 48-hour limit on the working week, rules on rest breaks, and the inclusion of overtime pay in holiday pay calculations – were going to be altered by government.

James Froud, head of employment at McCarthy Denning, told Personnel Today that the subject was attracting a “certain amount of hysteria and hyperbole”.

The working time regulations present a good example of bureaucracy, which is generally hated by business and not much relied upon by workers” – James Froud, McCarthy Denning

Froud said: “The UK’s participation in Europe has often been blamed for the amount of employment regulation in this country. But in reality the UK has consistently shown a willingness to gold-plate laws emanating from Europe, which in some cases has meant making them better for employees and more onerous on business. It has also legislated for employee rights independently from Europe.

“For example, we have given employees enhanced discrimination rights, more holiday, increased protection in the context of business-transfers (TUPE) and favourable family-related entitlements; the right not to be unfairly dismissed is a UK-centric benefit and some of our equality legislation pre-dates our participation in Europe.”

Under the EU Trade & Cooperation Agreement, the UK has committed to maintaining the standard of employment rights that existed on 31 December 2020, if this would affect trade or investment. The UK is free to choose to diverge from future EU employment laws but the EU may, within certain constraints and subject to an arbitration process, apply “rebalancing measures” if it obtains proof of a material impact on trade or investment.

However, Froud said, “the Conservative government has consistently promised to build on employment protections. That is not a playing field on which we are going to see a completely different ball game. There may be greater scrutiny and some tweaks to the rules of engagement but the general principles are going to stay in place.

“That being said, given the opportunity, it does seem inevitable that this Conservative government will seek to trim around the edges of EU-derived red-tape for two reasons. Firstly, from a political perspective, workers’ rights offer a visible – and universally relevant – platform on which the government can demonstrate it is ‘taking-back control of our laws (and borders)’. Secondly, reducing the legal burden on UK businesses may be imperative for them to thrive in a post-Brexit world.

“Variations to unwanted EU-legacy rights will, at least in the short to medium term, need to be balanced against the trade agreement commitment not to weaken employment rights.

“The working time regulations present a good example of bureaucracy, which is generally hated by business and not much relied upon by workers; there are a great many employees in the UK who opt-out of the 48-hour week by choice. Culling that particular social protection might be seen as an easy-win.”

On Monday, employment partner Kelly Thomson at RPC, told Personnel Today that businesses may need to retain workers’ protections if they wanted to continue to attract top talent, whatever moves the government made.

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