Where next for employment rights?

Will leaving the EU and the new political landscape mean more or less protection for workers?

The election of a new government in December has arguably brought more certainty to the political landscape. The Withdrawal Agreement Bill has now passed all its stages in Parliament and been given Royal Assent. The UK will therefore leave the European Union on 31 January 2020, with a transition period running until 31 December 2020.

EU/EEA workers who have not yet applied for settled status and are resident in the UK before the end of the transition period can do so until 30 June 2021. Otherwise, EU/EEA workers who wish to live and work in the UK in the future look likely to be subject to the same skills-based immigration rules as other foreign workers. A Migration Advisory Committee report on this proposed immigration system was finally published on 28 January and it is expected that the Government will follow most of its recommendations. Further details of the consultation and report are available here.   

However, since employment rights were removed from the Withdrawal Agreement Bill and referred to instead in the non-binding Political Declaration, there is now no guarantee that employment rights will develop in alignment with those available to EU citizens. Recent Government announcements have confirmed that it is intended that the lower courts (not only the Supreme Court) will be able to "roll back" EU legal rulings after the UK's departure from the EU. This may mean that UK employment law will begin to diverge from EU law, although such divergence may be limited by the terms of any future trade agreement between the EU and the UK.

The Queen's speech in December promised a new Employment Bill and gives some indication of the new Government's initial priorities. The Queen's speech included reference to:

• a right for all workers, such as those on zero hours contracts, to request a more predictable and stable contract after 26 weeks' service;
• the right for parents to take extended paid leave if their babies require special neonatal care;
• extended redundancy protection for pregnant women which will begin when the employee notifies her employer of the pregnancy and end six months after maternity leave;
• a new right to one week’s leave for unpaid carers; and
• a new approach making flexible working the default unless employers have a good reason not to grant it.

This shows a clear focus on family friendly rights and protection for workers in the gig economy. As such these plans chime with legislative changes coming into force from April this year, including statutory paid leave for bereaved parents, the right to a written statement of employment particulars from day one for all workers and employees and changes to the calculation of holiday pay for workers with variable hours. 

There is an interesting tension between the Government's stated intentions to diverge from EU regulation and its announcements on employment protections. It is difficult at this point to predict whether future employment law changes in this Parliament will increase or reduce protections for workers and whether they keep step with, fall behind or move ahead of those available to EU citizens.