A Word from the Editor - June 2019

Alex Lock, DAC Beachcroft LLP
Saturday, June 1, 2019

Imagine yourself in an employment tribunal. At the outset, the judge asks you and your opponent to agree to the decision that s/he will make and not to appeal against it. You both ask what that decision will be and the reasons for it and s/he replies that it hasn’t yet been decided, but nevertheless expects you to agree. Clearly, in those circumstances, neither party would agree to do so. Leaving aside the lack of transparency and inherent unfairness in such a process, no-one wants to sign up to something that they know neither the detail nor the substance of, not least because it may be adverse to their own interests or views in doing so.

Yet, as the Brexit train rumbles down the track to a destination yet to be determined, there is a whiff of unrealistic expectation in the air when it comes to workers’ rights and protection.

On one side of the debate, there are two anti-EU schools of thought. There are those that consider the EU to be a capitalist club. Its members are multi-national corporations and the politicians who facilitate them. They move capital and labour around to maximise profit and, in doing so, actively or otherwise undermine the rights of the workers that they exploit. They play off different groups against each other, seeking to drive down costs and protection by offering to build their manufacturing plant in this country or the other, depending on where they can get the better deal. The EU, it is said, facilitates this by being a single market with free movement of capital and labour.

Then there are those that view the EU as being an interventionist and meddling organisation. Its members are unelected bureaucrats who have never worked in the so-called real world, all being career (and probably failed) politicians or civil servants. They justify their existence by coming up with rules and regulations that are designed to thwart the entrepreneurial ambitions of individuals and communities, and try to create some sort of homogenous mass.

Both these groups would be unwilling to sign up to future workers’ protections, on the basis that one would not regard them as being that (not going far enough), while the other would believe things had already gone too far and would not be prepared to sign up for more.

On the other side of the debate, are those that are pro-EU. They believe that a single market, with freedom of movement, capital, goods and services can be liberating and facilitates not only economic growth and development, but also cultural and social growth and development.

They believe that common rules and standards provide greater protection for consumers, workers and the environment and that clubbing together gives the collective group greater strength and bargaining power when compared to other large nations in the world.

Even this group, however, would not think the EU was perfect in every respect and may have similar views to the other as to workers’ protections, ie they have gone/not gone far enough.

It seems strange, therefore, to propose, as a compromise to our current stalemate, that a way through is to sign up to such future protections, without knowing what they are. Employment law is where politics meets economics meets social policy and it is dynamic and fast-changing. One only needs to look at the growth of the ‘gig economy’ to see the challenges. ELA’s purpose is to promote the best practice of employment law. For that, you either need a seat at the table or your own table.

Alex Lock, DAC Beachcroft LLP

The legal content in this article is believed to be correct and true on this date.