Protecting UK employment rights
Over the last forty years, the UK has witnessed a gradual erosion of workers’ rights through labour market deregulation that has been balanced, at least to some degree, by the guarantee of fundamental rights through the EU. Work by Professor Michael Ford has been pivotal in supporting the continued role of this European 'floor of rights' in resisting further substantive and procedural deregulation – helping to protect workers’ rights post-Brexit and enabling 20,000 additional individuals to bring employment tribunal claims against their employers each year.
Impact: At-a-glance
- Supported the movement to protect EU-derived labour rights after Brexit
- Contributed to a legal challenge based on EU law that resulted in the Supreme Court ruling that employment tribunal fees are unlawful
- Enabled thousands more UK employees to make claims against their employers without paying costs
Informing political debate around Brexit
Around 2016, Professor Ford’s work on Brexit focused on identifying the precise risks posed to substantive domestic labour protections by a 'hard' Brexit. His main contribution was a written Advice for the Trades Union Congress (TUC) that demonstrated the crucial importance EU laws that protect key employment rights in contrast with the weaker protections in domestic law.
Professor Ford also provided the TUC with evidence-based predictions of the EU law-based rights that would be most vulnerable to being watered down in the event of Brexit, including holiday entitlements, worker health and safety and protections against discrimination.
As well as influencing the trade union movement, former Shadow Brexit Secretary and now Labour Leader Sir Keir Starmer confirmed that the Advice provided to the TUC had “a significant impact on Labour Party policy running up to the Referendum.”
In particular, the warnings in the Advice created by Professor Ford prompted a Private Members’ Bill put forward by the Labour MP Melanie Onn which attempted to give a measure of legal protection to EU-derived rights after Brexit. Although the Bill was dismissed by Conservative MPs, it helped keep pressure on the Government, ultimately ensuring that the Trade Agreement between the EU and the UK reached in December 2020 contains pledges ‘to strive to increase’ protection for labour rights.
Ford’s work continues to be seen as the key reference point for trade unions and the Labour Party on these issues. As Trades Union Congress General Secretary France O’Grady puts it: “The quality and importance of Professor Ford’s work” means his research “continues to form the bedrock for TUC analysis of workplace rights in the context of the UK’s exit from the European Union.”
Levelling up access to employment tribunals
Professor Ford work also influenced the litigation which led directly to the ending of employment tribunal fees, first introduced in the UK 2013, and which were declared unlawful by the Supreme Court in 2017 – removing the need for any UK employee to pay fees when bringing claims such as unfair dismissal against their employer.
Ford assisted the Equality and Human Rights Commission, which intervened in the claim in support of UNISON, the trade union that made the challenge against fees. He conducted research and drafted the Written Case for the EHRC before Supreme Court. His extensive research and analysis focused on establishing the correct legal test for when an interference with access to the courts would be unlawful as a matter of domestic law, EU law and under the European Convention on Human Rights.
Ford also reviewed empirical evidence to show that tribunal fees breached the standard required by the European Court of Human Rights and EU law, drawing on sources such as the official tribunal statistics, large-scale surveys of employment tribunal applications and empirical work on tribunal conciliation. Ford’s analysis led to the striking finding that around 18,000 individuals did not bring claims each year owing to fees that could rise up to £1200.
“Michael’s Advice remains highly relevant whenever there are policy discussions and political debates about workers’ rights after Brexit. Its high quality of analysis means it remains the key text to refer to in this area.”
Following the UNISON challenge...
... the Supreme Court ruled that the fees were unlawful and unconstitutional - a decision that is generally agreed to be the most important employment law decision of the past 50 years.
The impact was immediate, particularly for employees who are now able to claim back any tribunal fees they paid out from when fees were introduced in 2013 until the date of the judgment in 2017. Many also found that their employment tribunal cases that had been dismissed because of non-payment of fees were reinstated.
Most significantly, when fees ceased to be payable from the day of the judgment, it led directly to a doubling in claims. Today,more than 20,000 workers a year now make claims via the employment tribunal which would not have been brought between under the system that ran from 2013 to 2017.
