Keith Ewing & John Hendy Letter On EU Employment Rights

John Hendy QC

Letter To Morning Star

In reply to Kevan Nelson’s letter in the Star on 26th February, no-one is advocating that the judgments of the EU court which are adverse to workers’ and trade union rights should be preserved to inhibit the incoming Labour Government. There are a good number of such adverse decisions. But there are some judgments which fortify workers’ rights.

We had hoped that when we used the phrase ‘no regression on workers’ rights’ it

Professor Keith Ewing

was clear that we meant that there should be a legal requirement that workers’ and trade union rights in the UK after Brexit should be no less favourable than those applicable in the EU. Under a Labour government, it goes without saying that workers’ and trade union rights in the UK will be more favourable than those in the EU and that we will be freed of CJEU decisions such as Alemo-Herron, Viking and Laval.

But for the moment it is necessary to protect against the Conservative government watering down important UK workers’ rights granted (or to be improved) by EU Directives or CJEU decisions. What is required (and what the Tories will not agree) is:

  1. A guarantee after Brexit that every worker in the UK shall enjoy rights in relation to work which are no less favourable than those enjoyed by a comparable worker in the EU. (‘Worker’ to be defined as in EU law (since it is a wider definition) and applicable to those seeking or who have recently left work.)
  2. Any question of whether a UK worker has less favourable rights to those of her EU comparator shall be determined by the UK courts. (The Tories want a vote on a government motion to decide.)
  3. In determining whether a UK worker has less favourable rights than those of her EU comparator the domestic courts will be required to have regard to any relevant jurisprudence of the CJEU. (So the courts will have to give effect to a CJEU decision giving more favourable rights but ignoring one which diminishes ri)
  4. The guarantee shall be enforced by the UK courts on the application of any worker in the UK claiming to be affected.
  5. The guarantee shall be written into the Treaty for leaving the EU.

Prof Keith Ewing and John Hendy QC, Published March 4th

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