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Employment rights: An unseen iceberg in the Brexit debate

Snigdha Nag considers the employment law rights of millions of UK workers to be the number one hidden issue ahead of the EU Referendum

13 June 2016

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Unless you've been living under a rock, chances are you are aware of
the impending EU referendum on 23 June. A key Brexit slogan
is 'we don't want Brussels to dictate which laws the UK should pass'. This argument has gained traction with the public, thanks in part to the press reports on curly cucumbers and the 'abolition' of pounds and ounces. But many of the laws 'imposed' by the EU are to the benefit of millions of workers and employees, which, naturally, benefits our society.

UK workers did not have the right to paid annual leave, even for bank holidays, until the EU Working Time Directive created the right. Implemented in the
UK through the Working Time Regulations 1998, the law not only provided for holiday entitlement and pay, it introduced a maximum 48-hour working week, rest breaks during the day, the right to one day off each week, and more. Envisaged as a health and safety measure, the message was that tired workers make mistakes, which could result in injury, damage,
or financial loss.

Post Brexit, the key rights under threat are those belonging to people who often cannot fight for themselves. Part-time workers, the vast majority of which are women, have been protected from discrimination and given the same protection as full timers. Agency workers enjoyed no rights whatsoever, until the EU sought to protect them.

Thanks to the Transfer of Undertakings (Protection of Employment) Regulations
2006 (TUPE), those whose companies are sold out have their contractual rights preserved,
and cannot be sacked to facilitate deals done under the table. Health and safety rights, so often considered petty, safeguard employees undertaking genuinely dangerous work.
And then there is collective consultation for major redundancy situations; just think of the thousands of unfortunate British Steel and BHS employees.

We take it as read that treating someone badly or refusing them employment because of their sexual orientation or religious beliefs is wrong. But this discrimination is only unlawful because of EU law.

Priti Patel MP is a Brexit advocate, who, under the auspices of encouraging growth, told the Institute of Directors: 'If we could just halve the burdens of the EU social and employment legislation we could deliver a £4.3bn boost to our economy
and 60,000 new jobs.' It is clear that some members of the government have employment rights in their sights should there be a vote for Brexit.

This should come as no surprise. When the Conservatives were in coalition, their policy initiative 'The Red Tape Challenge' mooted reductions
to health and safety law and employment protection. The 2012 Beecroft report suggested many possible reforms, the
most radical of which was the abolition of unfair dismissal
laws and the introduction of compensated no-fault dismissal; pay a redundancy payment
and rid yourself of employees, whatever the reason. So far
we have seen the introduction
of protected settlement discussions, early conciliation, and the much-criticised tribunal fees, creating barriers to claimants however meritorious the claim. Rights to bring personal injury claims for breach of health and safety regulations (but not negligence) have also been removed.

We owe many rights to the
EU which assist in achieving a balance between family and working life. How many people benefit from our current levels of maternity leave and pay and the right to request flexible working each year? How many more will benefit from the recent provision for shared parental leave? All are thanks
to the EU's directives for family friendly working.

Calls for deregulation and 'flexibility' sound, at first blush, attractive. It is easy to point out the cost of annual leave and suggest it harms the economy. But we all gain from a lack of accidents occurring due to burnt-out workers. Society benefits from children growing up with the attention and input of their parents. In the face of
an ageing population, we need mothers in work to contribute to the economy. Part-time and agency workers should be protected, because without it,
a lack of employment security results in them being unable
to spend money within the economy, constantly fearing loss of their livelihoods.

It seems surprising I am
not hearing from Remain campaigners about the raft
of protection employees and workers enjoy thanks to EU law. Employment rights of millions of UK employees has to be the number-one hidden issue - a looming iceberg even - in the Brexit debate. Everyone in work needs to be aware that some
of the things which provide work-life balance, rights to be treated fairly, or the ability to enjoy family life when not 'in the office' come from what is often portrayed as an institution more interested in the straightness of cucumbers than the welfare of hard-working people.

Snigdha Nag is a barrister and senior lecturer at City Law School @snigskitchen

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Contracts & Rights EU & International The Bar