358

Capital & Class 41(2)

EU labour law section: The Great

Deregulation and the campaign for
free movement of labour post-Brexit

Phoebe Moore
Middlesex University, UK

As opposed to the allusions made both in the British media and politicians statements,
particularly in the Leave campaign, that the EU has created negative living conditions for
people in Britain, EU labour law has had a positive effect on local labour law and free
movement of labour is a crucial aspect of social, economic and political development.
This article focusses on EU labour law to make this argument, looking first at the ways
that British labour law has been influenced by EU labour law. Then I discuss a defining
feature of EU membership: the free movement of labour. The threat of its removal when
the United Kingdom leaves the single market has led to a significant national campaign,
Free Movement of Labour: Campaign to defend freedom of movement across Europe,
post-Brexit.1
In this article, I am not defending the EU as a perfect regional framework by any
means. The EU has been repeatedly critiqued for its neoliberal agenda and I recognise its
limitations. What I am saying is that there has been scant discussion of why the vote
swung to leave during this particular phase in Britains history. What did voters actually
want? Why was the majority vote to leave the EU located in post-industrial working-
class areas of Britain? What did people think leaving the EU would do for Britain? In the
wake of unanswered questions, Article 50 has been triggered. In the following piece, I
deal, not with the questions of why people voted to leave, which is dealt with in other
articles in this symposium in Capital & Class, but what it is likely to mean for workers
after the United Kingdom leaves the EU. To do so, I outline how Britain has benefited
from EU labour law over time.

How Britain has benefited from EU labour law

The UK voted to leave the EU in a momentous referendum held on 23 June 2016. This
was the second time Britain has held an EU-related referendum. The first time was in
1975, where the vote was whether to stay within the European Economic Community.
Britain has had a tense relationship with the EU since its formation in the 1990s and in
its lead up to its joining the EC. Historically, leading Conservatives such as Churchill,
and Labour Party leaders, such as Gaitskell, were concerned that Britain should be more
focussed on maintaining its transatlantic relationship with the United States, or otherwise
Moore 359

was more interested in a transatlantic relationship with the United States, its colonial
relations, or otherwise protecting its national sovereignty, and were therefore sceptical
about joining or applying for membership in the then-EEC or EC.
As a result, the United Kingdom did not join the EC until 1973, under a Conservative
government. In its campaign for the general election one year later, the Labour Party
committed itself to a referendum to let people make that decision, announcing in its
1974 manifesto that

The Labour Government pledges that within twelve months of this election we will give the
British people the final say, which will be binding on the Government through the ballot box
on whether we accept the terms and stay in or reject the terms and come out.

What is interesting about this manifesto is its commitment to the prioritisation of

social justice over economic rights. This is in marked contrast to Theresa Mays letter
triggering Article 50, 43years later, which puts forward a plea for economic and security
cooperation after the UKs exit from the EU to be negotiated after the quite different
second referendum result in June 2016. The letter triggering Article 50 says nothing
about social justice and all mentions of security are in the context of an international
terrorist threat. The Labour Party in the 1970s saw the British peoples voice as impor-
tant with regard to social security, a policy for morality, equality and justice in foreign
policy and security for people who live in furnished tenancies. The wording of the letter
triggering Article 50 is curious given that many of the British population who voted to
leave the EU live in post-industrial areas, where social justice in the way of public spend-
ing and job creation has been extremely low.
The vote in 1975 swung to remain a member of the EC. At the time, British trade
unions were not fully in favour of continued EC membership as it was seen to represent
all things capitalist. Nonetheless, the vote swung to remain and Britain stayed in the
Common Market. Then, during the course of Thatchers Prime Ministership, British
unions came to view the EU as the most beneficial option available, as a defence against
an on-going assault on national employment law. The European Communities Act 1972
had a significant impact on Britains legal order, considerably more than, for example,
ILO Labour Conventions, which Parliament can much more straightforwardly override.
Based on direct effect, or the requirement for member states to take EU labour law on
board, British labour law has repeatedly benefited from EU directives. EU law therefore
represents a far more amenable terrain upon which to implement social-democratic
reforms than that which exists in the British state if it were (or when it becomes) a non-
member of the EU.
I claim that a series of governments have worked to prevent the public from under-
standing the benefits of EU membership for many years, not least the understanding that
the four freedoms of the EU are the freedom of movement of goods, people, services
and capital over borders. I think that various techniques, outlined below, have obscured
the issue and changed/skewed the debate for people who want change and alternatives to
years of austerity and central authority as have been enacted by decades of governments,
both Labour and Conservative. Rather than addressing precisely how inequality has
360 Capital & Class 41(2)

emerged, techniques of moral panic and trasformismo have shifted attention from identi-
fying the root cause for peoples concerns, which is global capitalism rather than regional
powers. The lack of understanding regarding how global capitalism perpetuates and
relies on inequality to thrive and a belief in an unobtainable better Britain based on what
is on offer from corporate-driven consumerism and anti-collective policies, has resulted
in populations targeting immigration and othering rather than asking governments to
distribute resources more fairly and recognise populations for what they actually are
hardworking people, who no longer want the status quo.
So, the vote for Brexit symbolises much more than the polarising rhetoric following
the vote to leave. We must look at the global political economic context to get a sense
for how and why this happened at this point in history. The vote shows widespread
nostalgia for the fantasy of free market capitalism that had been generated by a series of
governments in earlier periods of British history. Blame is placed on the EU for the
failure of this project rather than looking internally or realising the inherent impossi-
bilities of capitalism to provide equality, basic welfare and access to resources (see Worth
2017). The alternative that leave voters desire is unachievable simply by leaving the
EU. The Brexit vote symbolises what may look like a last round of the fight between
capital and labour and if Britain leave the EU, we can say that capital, and capitalists,
will have won.
Tensions exist between the free movement of capital and free movement of labour in
a capitalist system, but these are two of the four freedoms that are required for member-
ship in the EU. However, even if free movement of capital wins and if Theresa May can
negotiate free movement at the sector level without retaining free movement of labour,
an EU-free Britain will not provide what has been lost by British citizens or indeed per-
haps never had. British governments, both Conservative and (New) Labour, have sys-
tematically absorbed ideas that challenge capitalism by making other ideas appear
beneficial for workers using the technique Gramsci called trasformismo. One example is
workfare, which sounded good at first glance, whereby all people are given a right to
work, but in practice meant that unpaid workers were required to benefit private com-
panies profits as a condition to receive their benefits. These kinds of government antics
have been accompanied by the dearth of discussion in the media about the benefits of
EU membership and the lack of educational materials in curricula or in public discourse
along these lines, leading to widespread ignorance, as revealed in the run-up to the refer-
endum, about what the EU was, what it does, who runs it and how it is more than simply
an organisation of faceless unelected bureaucrats.
Indeed, EU law explicitly defends workers rights, allowing workers to cross borders
and work wherever they want in the EU. The Free Movement of Workers, as set out in
Article 45 of the Treaty on the Functioning of the European Union (TFEU), requires the
prohibition of any discrimination based on nationality between EU workers. It therefore
allows all EU citizens to:

Look for a job in another EU country;

Work there without needing a work permit;
Reside there for that purpose;
Moore 361

Stay there even after employment has finished;

Enjoy equal treatment with nationals in access to employment, working condi-
tions and all other social and tax advantages.

British workers, then, are currently permitted to work across borders within the EU
if they desire to do so, and several hundred thousand British workers have taken advan-
tage of this permission. As such, they are seriously at risk of losing this right as well as the
rights we have obtained as an EU member.
Meanwhile, governments have systematically demonised alternatives or agents carry-
ing ideas for alternatives, including paradoxically fairness in the workplace, as typically
heralded by trade unions. Instead, we have seen on-going trade union busting policies
since Thatcher, portraying unions as demonic rather than legitimate social partners (as
has (historically) been done in other European countries). This has also been seen in the
on-going tensions in incorporating EU labour law, such as the Working Time Directive
(WTD) which the United Kingdom both negotiated a partial opt-out from and yet still
demonised. Indeed, the WTD was only signed up for by the United Kingdom under the
Blair Government, which strangely nevertheless also brought in an opt in/out clause,
which means workers are permitted to state whether they would like to work longer
hours. While this appears to give great flexibility and workers choice, companies often
ignore overworked hours, or tell employees that working longer than 48hours is a condi-
tion of employment.
Governments, including New Labour, have failed to address festering local issues and
to invest properly in de-industrialised areas which would have involved addressing work-
ing-class concerns that are now for many commentators considered to have witnessed a
prevalence of xenophobic, anti-immigrant concerns. This was exacerbated by a period
of sustained moral panic encouraged by moral entrepreneurs, particularly politicians
and reporters, who worked to generate antagonism against immigrant workers who
worked to prevent solidarity between the national and international working class.
This compounded the trade union-busting policies and media coverage of strike action
characteristic of the neoliberal period, in which unions are portrayed as demonic trou-
blemakers, rather than legitimate social partners.

Rights for workers obtained through EU membership

Workers gained a huge number of rights during Britains period of EU membership
which we are now set to lose. This covers British workers rights locally and huge risks for
EU workers, in losing the right to free movement. For this argument, I rely on two
reports, one published by the Trades Union Congress called UK Employment Rights and
the EU published on 25 February 2016 and one provided by Michael Ford, QC
Employment Tribunal Judge.
Thus, the United Kingdom has one of the lightest regulated labour markets in the
world. This, so it is claimed, gives the United Kingdom a competitive advantage. The
risk, however, is that post-Brexit this country will become akin to a race to the bottom
country, in which deregulation becomes the default option. David Davis has already
362 Capital & Class 41(2)

iterated: To those who are trying to frighten British workers, saying, When we leave,
employment rights will be eroded, I say firmly and unequivocally, no they wont.
However, this statement relies on there being in place a pro-regulation government. Yet,
there is a lot of evidence that the current government and its actions over time certainly
are not that. The last coalition government had a clear preference for a deregulated
labour market, shown, for example, in its Red Tape challenge2 which was a drive set up
by Cameron to get rid of the burden of excessive regulation. The BIS Consultation
Flexible, Effective, Fair: Promoting Economic Growth Through a Strong and Flexible
Labour Market 2011 also emphasised minimal government interference. Finally, the
Beecroft Report3 sought extreme deregulation in relation to areas not governed by EU
law, principally unfair dismissal law.
QC Michael Ford also points out that If Brexit occurs there will be no legal barrier
to a government legislating to create a labour market whose predominant feature is free-
dom of contract (for which read a legal system to permit the employer to dictate terms)
and in which there is no longer the extensive collective bargaining coverage which can
operate to correct inequality of bargaining power between individual and employer. The
key areas at risk are therefore:

1. Legislation on collective consultation;

2. Working time;
3. Some health and safety regulations (6-pack);
4. Aspects of TUPE (government has already tried to remove gold plating);
5. Protections for agency and other non-standard workers (in tension with prefer-
ences for flexible labour market) and
6. Aspects of discrimination law that businesses object to, especially uncapped
compensation and other types of discrimination like age.

EU law has greatly benefited domestic law and there are many cases where peoples
social rights were upheld as a direct result. The ECJ require member states to interpret
social rights in the employment sphere widely, not narrowly. Domestic courts have often
interpreted employment laws in overly narrow terms. There are many examples where
ECJ has played a corrective role, including in equal pay and sex discrimination. This
exists under so-called direct effect legislation, meaning that provisions in EU law do not
require transposition into domestic law. A classic case is Article 157 in 1976 Defrenne v
Sabena (No. 2), where a female flight attendant indicated that she had not been given
equal treatment on the grounds of gender, being forced to retire and forced to take worse
pension rights. In this case,4 ECR 455 had direct effect against both state and private
bodies. Articles of Directives can be used in this way, meaning that workers can use them
in court unconditionally.
The principle of direct effect has had a beneficial impact on workers rights in a num-
ber of cases. This includes the EU Framework Equal Treatment Directive in 2000 which
introduced protection against discrimination on the basis of age, belief, religious or sex-
ual orientation. Likewise, the duty of consistent interpretation, or the Marleasing duty,
has produced similar improvements such as in the Lister v Forth Dry Dock ICR 341
(1989) case5 (which upheld TUPE rights) and the Webb v Emo ICR 1021 (1995) case
Moore 363

(which removed the need to compare women with a sick man in a pregnancy case).
Furthermore, the 2010 Attridge LLP v Coleman ICR 242 case led to more provisions
that protected against associative discrimination added to the Disability Discrimination
Act 1995, and the NHS Leeds V Larner ICR 1389 2012 case led to words being added
to the Working Time Regulations to make sure workers had the same entitlements to
paid annual leave, as required by the Directive see also Bear Scotland V Fulton (2015)
ICR221.
Infringement proceedings, also called Francovich, have also meant that direct action
can be brought against members for not incorporating EU labour law. Bodies, including
trade unions, can also appeal directly to the European Commission to ask it to bring
proceedings against a member state that is failing to implement EU law. One example
where this was successful was where the United Kingdom was required to introduce
equal pay for jobs of equal value where no job evaluation study had been carried out into
equal pay law in Commission V UK 1982. This also led to amendments to TUPE 1981
and Trade Union and labour Relations (Consolidation) Act 1992 (TULRCA), meaning
employers who do not recognise a trade union must go into consultation when there is a
threat of large-scale redundancies, that consultation should be held with the view to
reaching agreement, and to require consultations when dismissals also lead to changes to
terms/conditions at work and remove limitations on compensation.
While free movement has been the most discussed area at risk in the months follow-
ing the referendum, workers enjoy a range of security at work and benefits of working
conditions that we have not realised are a direct result of EU labour law. After the so-
called great repeal, it remains to be seen which areas of law consecutive governments
will keep. The Repeal will happen gradually and probably not as a bonfire (Heyes 2016)
but will nevertheless look, over a period of a few years, like a Great Deregulation, given
the trends we have seen with recent governments. This poses a reminder that the alterna-
tive that leave voters desired, and the likely reality of how this new alternative will
actually turn out, are very different things.

Notes
1. For more on this campaign, see: https://freemovementlabour.wordpress.com/ See Appendix
for public talks written by Lucia Pradella.
2. http://webarchive.nationalarchives.gov.uk/20150522175321/http://www.redtapechallenge.
cabinetoffice.gov.uk/home/index/
3. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/32148/11-
1308-flexible-effective-fair-labour-market.pdf
4. This case was where Gabrielle Defrenne who worked as a flight attendance for Sabena was
forced to retire in 1968, which, under Belgian law, women working as flight attendants, at
age 40 years, were required to do, unlike men. Defrenne claimed that this violated her right
to equal treatment, given she had to take lower pension rights. This was under article 119 of
the Treaty of European Community now Article 157 of the TFEU.
5. In this case, workers were fired by the new company 1 hour before the transfer of another
company took place (Forth Dry Dock was received by Forth Estuary). The Forth Estuary
already had workers lined up who would take lower pay and could not pay for damages or
other dismissal pay. TUPER 1981 regulation 5(3) held that Regulations should be applica-
ble for employees just before a transfer which is now held in TUPER 2006 regulation 4(3).
364 Capital & Class 41(2)

While it was not an immediate victory, workers appealed and finally under the Business
Transfers Directive the conclusion was that the United Kingdom courts are under duty to fol-
low the ECJ by allowing purposive construction to the Directives and to Regulations issued
for the purpose of complying with Directive and agreed that in the case of an insolvent
transferor are largely illusory unless they can be exerted against the transfer. So dismissals
must be treated fairly at a transfer moment as any other employee under the Directive.

References
Ford M (2016) Workers rights from Europe?: The impact of Brexit Online. Trades Union
Congress publication. Available at: https://www.tuc.org.uk/sites/default/files/Brexit%20
Legal%20Opinion.pdf
Heyes J (2016) How might Brexit affect UK employment rights? Commentary. The European
Financial Review, October/November. Available at: http://www.europeanfinancialreview.
com/?p=10672
Worth O (2017) Reviving Hayeks dream. Globalizations 14(1): 104109.

Author biography
Phoebe Moore is Senior Lecturer in International Relations, Middlesex University.

Appendix: campaign for free movement of labour

Lucia Pradella and Phoebe Moore
This section outlines the Free movement of labour: Campaign to defend freedom of
movement across Europe post-Brexit convened by Lucia Pradella and Phoebe Moore
together with Sean Wallis, Mandy Brown, Carlo Morelli, Steve Jefferys, Eleonore
Kofman, Sandy Nicoll, Alex Callinicos and several others. The Campaign has mobilised
activists with different views on Brexit, and also involves trade unionists in Unite and
Unison.
Just after the Referendum, Pradella and Moore wrote an open letter to the UCU
leadership, asking the new President Rob Goodfellow to explicitly defend free movement
of labour for its membership. Over 350 union members signed the letter. Subsequently,
the group wrote letters to both the Guardian and Times Higher Education. Reflected in
these communications, the group wrote a draft motion and asked UCU Branches to
defend the motion to give it weight at the UCU Congress.
The motion asked branches to campaign for the following:

the free movement of labour and opposition to the Points-Based Immigration

Scheme
an up-front guarantee for existing EU/EEA citizens in the UK to stay
protection for EU research funding and EU students full recognition of workers
rights throughout EU withdrawal negotiations

Pradella, Moore and Wallis spoke at several events supporting free movement of
labour: at UCU branch meetings at Imperial College, London College of Fashion (UAL)
Moore 365

and SOAS, University of London; at the UCU Lefts conference September 2016; at a
UNITE Hotel Workers branch meeting; at a workshop organised at the Foundation for
European Progressive Studies (FEPS) for the ESRC seminar series run David Bailey
10/12/16; at the International Political Economy Group (IPEG) 2016 conference Leeds
Beckett organised by Alex Nunn and Holly Snaith; at the Barnet Trades Council annual
general meeting in February 2017; and several Stand up to Racism events in Liverpool
and London, including at a Hackney Stand up to Racism event with Diane Abbot MP
and Gary Younge.
The following branches have supported the motion:

UCU Scotland, Goldsmiths, Kings College London, University of Leeds, Liverpool

University jointly by UCU, UNISON and UNITE, London Met coordinating meet-
ing, London Region, London Retired Members, Middlesex, Northampton, Oxford,
Dundee, North West Region and SOAS University of London.

On 25 November, the UCU National Executive Committee voted overwhelmingly

for the motion devised by the free Movement Campaign. The motion was proposed by
Carlo Morelli, a member of the campaign, NEC member and UCU Left member.
The UCU has thus been the first union in Britain to take a clear stand in favour of
freedom of movement after Brexit.
UCU London Region and UCU Scotland have also affiliated to the Free Movement
Campaign.
On 27th May, the motion passed with some amendments at UCU Congress 2017,
Brighton.