Does Brexit threaten women’s employment rights?
The European Union has been the catalyst for most of the gender equality policies and legal rights enacted here in the UK. Even the UK’s 1970’s equal pay and sex discrimination laws were introduced in part in anticipation of planned EU directives in these areas. It was also the EU that enforced the amendment of the equal pay law to cover equal pay for work of equal value to meet the EU’s more encompassing standard.
Later, universal maternity leave and pro rata rights for part-time workers compared to full-time employees were all introduced through EU law in the face of opposition from the UK government. The EU has also pressed for ‘soft law’ rights, such as gender impact assessments of general policies, following the recommendations of the 1995 UN Beijing World Conference on Women.
All these EU driven initiatives have both raised awareness of gender equality issues and established a wide range of gender equality rights. The key question is therefore whether a Britain outside of the EU can continue on this path to equality?
Of course, even though the UK has developed its gender equality policy in tandem with or somewhat behind the EU, this does not necessarily mean that an independent UK would not have enacted its own gender equality laws. After all, the UK is a member state of the International Labour Organisation whose international conventions on equality are in many respects similar to EU law.
In some areas the UK also has a reputation for innovative gender equality policy. For example, its implementation of the Agenda for Change pay structure in the NHS is often cited as best practice. The UK has also introduced a right to request flexible working for all and imposed an equality duty on public bodies to actively promote equality. This endorses a more holistic, proactive attitude to equality than the standard complaints-driven approach. The surprise decision to bring in equal pay reporting has also been successful, measured by the sheer amount of publicity generated about the appalling state of gender inequality in the UK.
However, closer inspection reveals a less optimistic picture.
Many of the positive actions - for example Agenda for Change - were far from state-initiated actions. They were pushed for by trade unions and followed years of unions taking cases to employment tribunals to demonstrate that the fragmented collective bargaining in the UK’s public sector was not delivering equal pay for work of equal value. The equality duties on public bodies have also so far had limited impact due to the majority of public bodies having to deal with austerity cutbacks. And interest in gender pay gap reporting may also decline once it is recognised there are no legal obligations to address the gaps.
Even many of the UK’s rights provided under EU law are little more than empty shells at present.
For example, maternity leave, is not only paid at a low rate compared to other EU countries, thereby deterring take up of shared parental leave, but eligibility conditions for access are also stricter.
Rights for part-time workers are also often ineffective due to the concentration of part-time work in firms with few full-time comparators, gender impact assessments are only weakly implemented, and the right to request flexible working is after all only a request.
All of this suggests that even now the UK state tries to minimise the impact of EU equality measures. As such, the question is whether anything will change post-Brexit? As with everything else, it all depends on the deal.
Under some deals employment rights may need to stay aligned to EU regulations, but even so the UK may evade soft law pressures to bring in new policies. It is no coincidence that the UK’s gender pay gap reporting policy and its targets for women on boards were introduced at the same time as the EU was debating policies to nudge countries in these directions, backed by the threat of possible future legislation.
A worse fate, however, potentially awaits gender equality rights if the Brexit deal eventually allows the government to ‘take back control’ and ignore EU law. And we have seen what has happened to other employment rights that are outside the scope of EU law. Rights to strike, for example, have been continuously restricted and the length of service before someone can claim unfair dismissal has become the veritable political football, yo-yoing between six months and two years.
No political party has – so far – advocated major rolling back of gender equality laws but the prospect of gender equality laws being burned along with other aspects of ‘red tape’ is no longer a far-off fantasy. One of the arguments being made for a no deal Brexit is that this would enable Britain to compete for trade and investment by becoming a haven for a less regulated business environment.
It is unclear what lies ahead for women’s employment rights following Brexit. What is certain, however, is that without the influence of the EU many of the equality rights we now take for granted would not have been implemented or implemented as quickly. The best protection for equality rights is likely to be a deal that requires long term alignment of our equality rights with those of the EU.