Unite warns of threat to rights from repeal bill clause

Unite has warned that working people who suffer injustice at work could lose their right to sue the government if it has incorrectly implemented employment law derived from the European Union, because of a paragraph in the European Union (Withdrawal) bill.

A line in the bill, which gets its second reading in parliament on 7 September, states: “There is no right in domestic law on or after exit day to damages in accordance with the rule in Francovich.”

The Francovich rule allows a worker who cannot take an employment tribunal claim against their employer for breach of an EU directive, such as the working time regulations, because the UK government failed to enact the directive, or did so incorrectly, to sue the government for damages for that failure.

Although Brexit will mean that EU law will no longer apply in the UK, the paragraph in the bill appears to remove the right to sue the government under the Francovich rule for past breaches.

Unite says that combined with the confusion over how judges should treat rulings from the European Court of Justice (ECJ), the paragraph adds to the sense that the post-Brexit situation for our courts needs clarity.

Lady Hale, incoming Supreme Court president, has said that the weight to be accorded ECJ rulings is not something that judges “would like to have to make up”.

Len McCluskey, Unite general secretary, said: “Whether the Francovich rule provision in the bill is a deliberate attempt by the government to try to avoid responsibility for past breaches of EU law, or a poorly considered attempt to cover all bases in relation to the fact that EU law will no longer apply to the UK, it undoubtedly creates further uncertainty about workers’ rights after Brexit.

“Unite will be scrutinising the passage of the bill closely and calling on MPs to ensure that our members don’t lose any of their entitlements to damages for breaches of their employment rights, or that it is not left to individual courts to decide whether an ECJ ruling on the rights of, say, gig economy workers, can apply.”