Brexit will impact thousands of carers
As the Brexit date looms, and well over two years since the Referendum, the consequences of this decision are still unclear. Not many of us anticipated that leaving the EU could have an impact upon thousands of working parents and carers, but it will.
This is because of the degree to which EU law and policy are embedded in, and intertwined with, the UK legal system: the greater the reliance of a specific national policy on the EU, the greater the impact will be. The EU has been instrumental in shaping an agenda and creating a policy framework that has advanced the rights of working parents and carers and triggered progressive legislation. It is no exaggeration to say that thanks to the input of EU law thousands of individuals have gained real and substantive rights.
It has been the catalyst for the adoption and development of domestic legislation: for example, before the 1992 Pregnant Workers Directive, British mothers had to be employed for two years before claiming maternity pay, which had the effect of excluding thousands from maternity rights entitlements.
The Directive also triggered a duty to assess the workplace for specific risks to pregnant workers and new mothers, and the duty to make adjustments accordingly; a right to take time off to attend antenatal appointments; the prohibition on dismissal from the beginning of the pregnancy until the end of maternity leave; as well as the maintenance of terms and conditions of employment during maternity leave.
It was not until the Parental Leave Directive was adopted that fathers were granted time off to look after their children. The TUC has recently calculated that some 8.3 million parents are potentially eligible to use that right.
EU law also triggered the adoption of the Flexible Working Regulation, that allows those employees who meet certain requirements the right to request flexible working arrangements. The right, often used by parents and carers to gain more control over their family arrangements, has the potential to stimulate cultural change and make flexible working practice the norm.
Will the position of carers change once the UK is no longer part of the EU?
Theresa May had promised to guarantee workers’ rights after leaving the EU. Indeed, it is unlikely that any government would be keen to scale back such rights in any meaningful or immediate way – or that larger employers would want to abandon their existing family-friendly policies, given their significance as a recruitment and retention tool. It is possible, however, that exemptions could be introduced for small employers.
Furthermore, the situation might arise where, in a specific domestic dispute, a national judge will give a restrictive interpretation of EU-derived rights. In this case, a precedent can potentially be set and there will no longer be the ‘safety net’ provided by the European Court of Justice (ECJ), which in this area has often taken a progressive stance.
According to the European Union (Withdrawal) Act 2018, British courts will not be bound by ECJ decisions made on or after Brexit; neither will its jurisprudence bind the Supreme Court (there is merely a commitment to depart from it only ‘where it appears right to do so’).
True, the ‘safety net’ might come from other international provisions – such as Article 8 of the European Convention on Human Rights (ECHR) that calls for the respect for family life.
Although such provisions have been pivotal in shaping domestic legislation, they are ‘mere’ international obligations; as such, they do not confer any direct entitlements to individuals under UK law. Thus, their impact will be more limited than the impact of EU instruments that can be invoked directly by individuals.
Depending on the agreed terms of the relationship with the EU after Brexit, the UK government will be able to decide whether to implement any future EU-level developments. For example, the EU is currently discussing the adoption of a proposed Carers Directive, that will considerably strengthen the position of parents and carers.
It plans to enhance the right to parental leave, introduce individual rights to paid leave for fathers and carers, and extend the possibility to work flexibly for parents and carers. The proposed Directive has the real potential to give an opportunity to those who have on-going responsibilities to care on a regular basis whilst working. This is why it would be crucial, albeit unlikely, to secure a commitment from the government that the rights of carers will not be affected.
In reality, however, improving, or merely maintaining, this area of law is unlikely to be a priority for the British government for the next few years. Any decision is very likely to be influenced by the economic climate. Just as the 2008 financial crisis was seen as a reason to cut back on social services, it is likely that the post-Brexit climate will justify a similar approach.
This appears clear from the discussion in Parliament, where it was held that, despite ‘the government’s commitment to facilitating the balance of work with family and other commitments’, the [Carers] Directive should ‘not disrupt existing national systems unfavourably’.
Thus, even if domestic legislation in this area continues to exist, it will like be as a tool to regulate the needs of the employment market, rather than an instrument to invest in individuals.
Likewise, it would be simplistic to assume that the effects of Brexit in this area will only be experienced only in the UK. On the one hand, Brexit might be beneficial to the overall progress of this area: it is no secret that historically the UK has opposed developments in social legislation in favour of deregulation. Without the UK ‘dragging its heels’ social policy initiatives will have a better chance.
On the other hand, over the years the UK has made a tangible contribution to the development of EU law and has acted as a ‘critical friend’ both in the legislative process and in the ECJ. In relation to the latter, the UK has both sent preliminary references that have helped to define key concepts, and contributed judges and advocates general who have produced a significant body of opinions and judgments.
The vote for Brexit poses serious and concrete risks that hard-fought achievements for parents and carers will be slowed down. Paradoxically, valuing carers has never been more important. The post-Brexit future for working carers is at best uncertain and at worse worrying. If UK workers are ultimately the losers, nobody can be a winner.
By Eugenia Caracciolo di Torella, Associate Professor at at Leicester Law School researching the impact of the principle of gender equality on law and policy at both domestic and EU level.