Tim Sharp and Shantha David gave evidence.

Colleagues, we have until 3.35 pm for this session. Will the witnesses please introduce themselves for the record?

Tim Sharp:

I am Tim Sharp, senior employment rights officer at the Trades Union Congress, which has 48 affiliated trade unions representing 5.5 million members.

Shantha David:

Hello, and thank you for having us here today. I am an employment law solicitor. My name is Shantha David. I am head of legal services at Unison, the public sector trade union, which has 1.3 million members, 75% of which are women.

I have listened to some of the evidence, and there is a lot of discussion around process. I, on behalf of the union, would quite like to talk a little bit about the effect that this Bill will have on employment laws and workers.

Thank you. I am sure that some of the questions—perhaps even some of the early questions—will draw that out from you. I call Justin Madders.

Indeed. That seems a nice point to start. Could you set out your understanding of which employment laws will be covered by the Bill? Could you explain what some of the effects might be on certain groups?Q

Shantha David:

As we know, the Bill in the abstract looks at removing EU-derived laws. What we do not understand is how, if the provisions are sunsetted, that will strip away some very basic employment rights. I thought I would set some of those out.

For example, through EU-derived provision, the UK allows for 20 days of statutory annual leave. That will no longer survive if the provision is sunsetted. There is also protection for eight additional bank holidays, which is derived from the UK but is contained in the working time regulations. It is unclear whether those provisions would go, along with the 20 days of statutory leave, leaving UK citizens with no provision and no statutory annual leave entitlement.

Other typical basic employment rights are things such as the TUPE—transfer of undertakings (protection of employment)—regulations and protections, which I am sure you will know about. Those preserve an employee’s employment where their employment is outsourced or brought back in house, or where an employer’s business is bought out by another. Those employees are protected from dismissal. Their terms and conditions are also protected from being varied because of the transfer. If TUPE legislation goes, those sorts of employees could be sacked with no legal recourse, so it is unclear what would happen to them.

Family-friendly provisions are contained in a variety of different legislation. They are derived from the EU, as well as through Acts of Parliament. It is a tapestry of rights. Basic rights to maternity and paternity leave fall under the Employment Rights Act 1996, but the specifics in terms of the length of leave, who is eligible for that leave and payment of leave comes through EU provisions. Given the lack of information, it is unclear what will survive and what will face the chop.

There are other protections, such as part-time worker regulations and fixed-term regulations, which allow for parity of treatment for those types of workers. Again, those provisions will disappear overnight.

There are other provisions, such as the Equal Pay Act 1970. There are certain facets of that Act that are derived from Europe. Where there is a single source of payment for people’s terms and conditions, an employee can compare themselves with employees at a different establishment. Again, there are cases in the tribunals and courts at the moment dealing with this particular point. Removing the principle of direct effect will mean that these women in particular can no longer rely on the principle of equal pay for work of equal value. These are just some of the rights. There are many more, but we will provide written evidence if that is helpful.

That was a point very strongly made.

Q I want to return to one point you mentioned, which was interesting because it contradicted what some of the witnesses said earlier on. They said that one reason we do not need to worry too much about parliamentary procedure for removing these rights is because we did not have proper parliamentary procedure in the first place—it was imposed on us by the EU. You gave the good example of the eight days’ holiday pay, which was a decision by the UK Government. That was not actually imposed by the EU. Are there other examples of UK Government decisions or enhancements to EU regulations that will be lost as a result of this Bill?

Shantha David:

Yes, the TUPE provisions provide for certain types of service provision changes and protections, particularly for outsourcing and insourcing. These are UK-derived provisions that survived and were potentially updated in the 2014 TUPE regulations. It was interesting at that time because the consultation responses said there was a certain level of certainty in the provisions and to keep making changes was unsettling for businesses. It was businesses that came out most loudly saying, “We all know where we stand at the moment. Let’s leave this piece of legislation alone.” Removing it altogether will create a great deal of uncertainty and take us back to the ’70s and ’80s when we did not know quite what was going on. The effect will be to block up the courts and tribunals, which are already under-resourced. We know of the delays and backlogs in the court system. Trying to rectify and understand how the laws will work if TUPE is removed is very hard.

Q On that point, Mr Sharp, with the TUC being the umbrella body for trade unions, you will be having discussions with not only everyone in the trade union movement, but employers. What conversations are taking place about what the legal landscape will look like after 2023?

Tim Sharp:

Following on from what Shantha said, it is clear to us that these rights are not some sort of additional “nice to have” rights, they are crucial ones. They are particularly crucial for low-paid and vulnerable workers, and particularly the protections for part-time workers, for agency workers and for security guards and cleaners who are being transferred from one company to another.

At best, the uncertainty means that more things will be fought out in the courts. If you are a low-paid worker holding together multiple jobs, going through that process is both expensive and more than you can probably cope with. At worst, those rights go completely, so we are really worried about the impact it will have on vulnerable workers in particular. When you talk to business groups, it appears to be bad news for good bosses who want to do the right thing and follow what the law says. It is great news for bad bosses who do not care either way and they will have more freedom to do what they like. We are really worried about the impact of the legislation as it stands.

It is a good time to turn to the Minister.

Q Ms David, did you mention eight bank holidays?

Shantha David:

Yes.

Q So we are going to lose our bank holidays. Are we going to lose the one we get for the coronation of the King?

Shantha David:

I would not know. That is down to the Government.

Q But you are speculating that we are. I am anxious about this constant speculation and the fear that it is creating. People on the Government side, and in the Opposition as well, have done a huge amount of work to ensure that women and vulnerable people are protected at work, so I have struggled with your evidence today and references to us falling back to the 1970s and 1980s.

The UK is leading in a number of these aspects. We were the first to introduce two weeks’ paid paternity leave in 2003; the EU has only just legislated for this. We have the highest minimum wage if you compare us to France, Germany and Japan. We are leading on paid bereavement as well. We have far more maternity leave with over a year; the EU has just 14 weeks. In April 2019 we quadrupled the maximum fine for aggravated breaches of workers’ rights, so the assumption that we are somehow going to fall into the 1970s, creating an atmosphere of insecurity, is not healthy.

I am sorry; I will get to the point and ask my question. The Government have stated many times in the past few years that we will not reduce rights and protections as we leave the EU, and the Bill contains powers that enable the Government to preserve and codify the REUL in a way that will incorporate it fully into UK law. What basis is there to be fearful of those rights diminishing? I do not want to hear speculation—we do not have enough time. I want to understand what basis there is.

Shantha David:

I do not think this is speculation because, unfortunately, the Tableau does not provide a full list of legislation that is due to go. Without knowing what that is, it is impossible to know what will stay and what will go. It is imperative that the Government produce a list. The Tableau is the most incomprehensible piece of equipment. You have to put in random words to try and identify whether certain pieces of legislation will remain or go. The working time regulations contain the provision for the eight bank holidays. Whether they stay or go will be down to the Government, of course, but at the moment we do not know, and that is the biggest problem. It is the lack of clarity that is causing us the biggest headache.

Also, we are talking about 2,400 or 3,800—whatever the number is—pieces of legislation that are due to be sunsetted within a year. I understand they will simply go away at the end of next year unless something positive is done to replace them. If that is the case, yes, we will lose our rights to the 20 days of minimum annual leave entitlement. Women, who tend to be part-time workers, will not have the protections against dismissal and parity of treatment. And fixed-term workers, who also tend to be female, will not have their protections. Women who want to go back to the workplace and have the same employment and protection will not have that protection. You might think that is conjecture, but without knowing anything else, what else is there?

We need to have a comprehensive list of the legislation that is due to be affected. Once we know that, perhaps then we can be consulted as trade unions, as individuals and as members of the public so that we can have our say on what we want to keep. I do not think the Government intend to simply remove all legislation that assists workers and employees. I cannot imagine that that must be what the Government wish to do, so it would be helpful to have that information in front of us so that we can respond.

Minister?

That is all.

I call Stella Creasy.

Q I thought the Minister helpfully set out a whole range of employment protections that are rooted in retained EU law when it comes to women’s rights. Removing the foundation of those laws that have been applied in UK law creates the legal uncertainty that you alluded to. The answer is therefore a commitment, clarity and a confirmation to all those who depend on these laws that, as the Government say, they are going to be retained. But exactly which ones are going to be retained? What is the point of this legislation if we are just going to delete everything and start again? Have you, the organisations that work on employment rights, had any confirmation or commitment about these specific pieces of legislation?

Tim Sharp:

No, we have not had those conversations. We are still in the dark. We are really concerned about the array of rights that have been set out so far today. There are lots of health and safety laws as well and things like protection for pregnant workers—there are lots of protections—but, so far, we do not know. It seems we are taking a shortcut to an unknown destination.

Q Just so we are clear, the reason why that bank holiday entitlement exists in UK law is because EU legislation required it, and we have written proposals for bank holidays into law on the basis of EU legislation. If we remove that basis and that law is not retained, could an employer challenge the right of an employee in the next year to take a bank holiday?

Shantha David:

Just to clarify, the 20 days are derived from Europe. The additional eight days were because, historically, those eight days were incorporated into the 20 days. To ensure that people had the additional eight days of bank holiday, they were allowed for under UK law, but it is contained within the same piece of legislation, which is where the confusion might arise.

Q In terms of my specific question, it seems we would be going down to 12 days. Could an employer challenge the right of an employee to take a bank holiday if the Government do not rewrite this piece of legislation?

Shantha David:

I think it is worse than that, actually; we will not have the 20 days at all. We will have the eight days of bank holiday only if they are taken out of the current regulations, presumably, and put somewhere else. If the regulations go altogether, regulation 13A, which talks about the bank holidays, will go with them.

Q I am quite sure that the Government and their Ministers will be keen to ensure that the rights that people have enjoyed thus far are preserved. I cannot personally imagine a scenario in which they would not be careful about those things. I point out again that under clause 13(8), should anything inadvertently go that was not meant to go or have effects that were really bad, there is a power that could be used by a future Government to reproduce anything that was retained EU law in the European Union (Withdrawal) Act 2018. I just wanted to share my strong belief that that is not where the Government would go. I cannot speak for them, because I am not a member of the Government, but I would be amazed if there was anything different.

Shantha David:

It would be helpful, though, if that were in writing. I am grateful for your words, but as a lawyer it would be helpful to have a full list of what is included. If that piece of legislation, say, is sunsetted and introduced at a later date, there will be workers who do not have access to those laws. That is a breach of access to justice as well.

That would be a strong incentive for the Government to get it right.

Shantha David:

Indeed, but the timing is an issue. There is only just over a year to identify the pieces of legislation, and, as we mentioned, they are a tapestry of rights; we do not know where one right begins and another ends. I recommend the Employment Lawyers Association paper, which sets this out clearly.

Q I imagine that you both have regular meetings with Ministers and senior Government officials. Is that correct?

Shantha David:

I am a lawyer, so I do not necessarily.

I do not think that that necessarily precludes you.

Shantha David:

I am a practising lawyer.

What about you, Mr Sharp?

Tim Sharp:

We meet BEIS officials, for example, on a reasonably regular basis.

Q So you have presumably raised your concerns about the issue of protecting workers’ rights and the potential impact of the proposals in the Bill?

Tim Sharp:

We have raised our concerns about the protection of workers’ rights on a number of occasions when there has been speculation in the past, and have received lovely assurances, but I do not think we have met BEIS Ministers—there have been quite a few lately—in recent weeks. We certainly have not had the confirmation on workers’ rights. We have not been told if they are being retained.

Q Have you actually requested comfort from those senior officials on the issue of workers’ rights? Have you asked for assurances?

Tim Sharp:

I do not think anyone has been able to tell us anything about what decisions have been made.

Have you asked for assurances?

Shantha David:

I am unclear how that would assist—

You are clearly concerned that there may be a wholesale scrapping of workers’ rights as a consequence of this Bill. Have you asked for any reassurance from the officials to whom you have spoken?

Shantha David:

Can I—

Sorry, I thought you had not met any officials.

Shantha David:

No, but I am allowed to have an opinion, I think. I do meet officials from time to time.

No, can Mr Sharp answer this? He is the person who has had the meeting.

Tim Sharp:

We have met BEIS officials as the TUC. Have we asked for assurances? We have asked for information on what is planned on workers’ rights, and we have not been given any information on what is intended.

Q It seems to me that you have not asked for any assurances, including in this evidence today. Frankly, you are raising hares that are completely illusory, and you know full well, don’t you, that there is no way that the Government would scrap the rights that you are concerned about?

Tim Sharp:

It would be lovely to think that the Government will retain the rights as they are, but even in this benign scenario—it would be great if it happened—we are still going to have great chaos. Let us say that all the regulations are restated. We still have all the interpretive principles and the case law falling away. It has taken years of litigation to work out what entitlement workers have to carry over sick leave, for example. We do not know what the position might be after this Bill is passed. If you are a worker or a rep in a workplace, you do not want to be going to tribunal and to court to settle all these matters again, which is effectively what this Bill does. You want to be able to have a conversation—

Do you not think a simple conversation might assist? You have not had it.

I think you have pressed far enough on this, David. I would like to hear from Shantha.

Shantha David:

Thank you very much. I am just going to remind Mr Jones that the equality impact assessment does identify that the removal of laws will have a detrimental effect. I am not sure that that is an assurance, because it is not. Beyond that, I do not know what help we have. I do not have access to Ministers in that way. It takes a while to get an answer.

Much like Mr Sharp was saying, the only way to clarify legislation as we go along and to get certainty in the law—we will not have it if provisions are sunsetted—is via litigation. That is something I am able to talk about. Litigation is costly, and pursuing appeals in the Senior Courts will take a long time because of the delays I mentioned. Given that tribunals and lower courts will no longer be bound by retained EU law, there is also the question of how long-established principles of precedent would work, and whether referrals would have to be made from tribunals and lower courts to the Senior Courts, which is what is envisaged in the Bill—either to go to the Courts of Appeal in Scotland, Northern Ireland and England and Wales, or to go directly to the UK Supreme Court. We are not aware—there is nothing mentioned in the paperwork, which is the only thing we have to work on—that that will be resourced in any way. We already know that it takes at least a year to get to the UK Supreme Court. There are only 11 justices. I am unclear as to who will make those decisions around interpretation.

Q You are obviously a lawyer after my own heart, Ms David. Unless it is there in black and white, it is not worth a penny, is it? We have heard lots of assurances from various people who accept that they are not in a position to speak on behalf of the Government. Is it not the case that unless we get positive action from Ministers and things in black and white, these rights will automatically fall at the end of next year? The question is: would it not be much simpler if we put in this Bill a clause that said, “These pieces of legislation—these employment rights—will not be sunsetted”?

Shantha David:

Absolutely. If it is the Government’s intention not to get rid of workers’ rights and legislation that protects employees, of course it would be a lot simpler to simply set out what is protected.

I feel an amendment in Committee coming on.

Q I appreciate that this is something that people feel strongly about, because they are concerned for their constituents. Can the representative of the trade unions tell us what it was like when the Beecroft report came out? It talked about some of these issues, so if there is a concern to get not just a promise but a commitment in writing to protect these rights, would such an amendment be welcome? Would that be enough, given that Beecroft shows a direction of travel that this Government have previously considered?

Let us not stray too widely into Beecroft, because we are considering this Bill, but an answer would be helpful if it is relevant to this.

But it is relevant as an element of employment rights.

Shantha David:

The difficulty we have here is the speed at which this thing is happening. It is not about whether you want EU-derived legislation to exist; it is about being able to have a considered view on the employment provisions that exist for workers, and to ensure that employees and employers are not mired in litigation forever and a day. The costs of this are incredible, and I think that is not completely understood. The costs of litigation are profound. If there are to be clear exceptions, and if it is very obvious that certain employment legislation will survive this cull, perhaps that should be specified. That would be very helpful.

Marcus Fysh has the final question.

Q Would you be willing to be part of a taskforce organised by Ministers to try to ensure that, in the replacement of the EU-derived law, the rights that are put in place by Ministers as a part of English common law or UK law are drafted in a way that will give you the comfort that you want? That would mean that they would not have to be litigated up and down through different courts because they would be clear enough and good enough for what we all want for our constituents and for your members?

Shantha David:

We would be more than happy to help.

Tim Sharp:

Absolutely; trade unions would want to engage in such a process. I am not sure that it would stave off the scenarios we see, as the exact meaning of different rights would still end up being litigated. Even in that scenario—great, we would love to have those conversations, as it is really crucial that workers’ voices are heard, but the Bill will still cause immense confusion and costs to business and workers.

Thank you very much indeed for your evidence. We now move on to our next set of witnesses. We will slightly change the language and tone of proceedings, as we will be discussing the environment, which is an ever important issue.