Unite warns of second-rate workplace rights without European court clarity post-Brexit

Unite has welcomed the call by the UK’s most senior judge for ministers to provide greater clarity over how judges should treat rulings from the European Court of Justice (ECJ) post-Brexit.

Lord Neuberger, the president of the Supreme Court, warned of confusion in the courts because the government says courts and tribunals will not be bound by decisions of the ECJ.

The ECJ’s role is to interpret European law including, for example, that travel time is treated as working time, that commission payments must be included in holiday pay, and that employers must give women on maternity leave the same contractual rights as other employees.

The government’s European Union (Withdrawal) bill, otherwise known as the repeal bill, also rules out judges being able to refer legal disputes to the ECJ.

Unite has already described the bill as “confusing” because it states that UK courts “need not have regard to anything done on or after exit day by the European Court…but may do so if it considers it appropriate”.

This appears to mean that once the UK leaves the EU, our courts may be able to consider new ECJ decisions – but will not be required to follow them.

And another clause in the bill [Clause 7(3)] appears to actively prevent ministers using new order-making powers conferred on them by the Brexit legislation to update UK law in line with new workers’ rights secured in Europe.

Lord Neuberger spoke out in an interview today (8 August) with the BBC, saying: “If (the government) doesn’t express clearly what the judges should do about decisions of the ECJ after Brexit, or indeed any other topic after Brexit, then the judges will simply have to do their best.”

He said he hoped and expected parliament to spell out “in a statute” how judges should approach ECJ decisions, particularly those made after Brexit.

“If the UK parliament says we should take into account decisions of the ECJ then we will do so. If it says we shouldn’t then we won’t.”

Len McCluskey, Unite general secretary, said: “The government can’t simply leave it up to individual courts and judges to decide whether to consider new ECJ decisions and whether to follow them.

“It will be a recipe for chaos and confusion and endless legal challenges, with employers trying to ignore improvements to employment rights as a result of ECJ decisions, their lawyers arguing those decisions don’t apply, and UK workers left to fight in the courts for their rights to benefit from the same improvements to things like working time and holiday pay rights as their European colleagues.

“Unless the government commits to ensuring UK workers continue to benefit from future improved rights secured in the ECJ, and sets out exactly how that will happen, there is a real danger that our members will only be protected at work by second-rate rights.”