Brexit wouldn’t abolish paid holidays, but it would put them at risk

The Working Time Directive guarantees basic rights that the British government can top up at any time

 

Earlier this week, the TUC published research that showed the impact of the paid holidays element of the Working Time Directive.

Since it became part of UK law, 1.5 billion extra days of paid leave have been taken. Three million workers in the UK got a paid holiday for the first time ever, and 7.4 million have received more holidays — on average 13 days a year. Yet some people are saying we’re scare-mongering or part of ‘project fear.’

They’re wrong, and here’s why. You really, really should be worried about what would happen to paid holidays if the UK votes to leave the EU on 23 June.

Part of the allegation of scare-mongering is based on a simple misunderstanding about what we’ve said. We definitely haven’t said that paid holidays will be scrapped, and it’s more than likely that the legal entitlement to paid holidays won’t be. What we said was that rights to paid holidays would be at risk, and that the rights we currently have would be open to rewriting or whittling away.

Here is our rebuttal to some of the main responses to our publication.

1. These rights existed long before the EU Working Time Directive came into force

Some of our critics claim that the rights we’re talking about do not derive from the EU Working Time Directive, and existed long before. As our release made clear, many workers had paid holidays because of trade union collective bargaining agreements with their employers. And there were some laws on paid holidays like the 1938 Holidays with Pay Act, as my colleague Paul Sellers has pointed out.

But nothing that covered all workers – the 1938 Act did not cover some industries at all, and entitlements of 2 or 3 weeks per year were most common in the industries that it did cover. As our research shows, millions got paid leave for the first time, and one in four workers got more paid leave as a result of the legal requirement that all workers should get at least four weeks’ leave.

Actually, immediately before the rights came into force in 1998, the trend for contractual holiday entitlement in the UK had been getting worse. This was largely a consequence of the Major government’s 1993 decision to scrap wages councils which, under that 1938 Act, set pay and holiday entitlements in low-paid industries like retail and hotels.

The subsequent growth of part-time work – and the casualisation of the labour force through practices like zero hour contracts – also suggests that, without the EU rules, holiday entitlements in the UK would have got worse, not better.

It was the existence of far smaller numbers of part-time workers in the 1970s which dissuaded British governments from ratifying the 1970 ILO Convention on paid holidays which set the low bar of ‘a paid holiday of a specified minimum length.’

2. No government would try to take paid leave away

It’s almost certainly true that no government would take away everyone’s paid leave and we haven’t suggested they would, but it’s not unreasonable to be concerned that they would take away some people’s entitlement to paid leave.

Look what they’ve done to disabled people, people with bedrooms they have the temerity to leave unoccupied, or people under 25 excluded from the living wage. We suspect that a post-Brexit government would start by revoking European Court judgments that have extended definitions of the pay people should receive, or whether people on sick leave or maternity leave should still accumulate paid holidays.

Then they might go on to part-time workers, or temporary workers, or workers on short-term contracts. The point is that, without the EU Working Time Directive backed up by the European Court of Justice (ECJ), there is no limit to how far they could whittle these rights back.

3. No one is seriously arguing for cutting paid holidays

The BBC noted that Labour and Liberal Democrat politicians would vote against scrapping rights to paid holidays ‘and so would some Tories’. But, as we are discovering through the progression of the Trade Union Bill, that’s overly optimistic. What we do know is that several Conservative politicians, think tanks and lobbyists are indeed pressing for change.

For example, just this week, Open Europe, a think-tank close to Conservative politicians (their former director now works for David Cameron at No 10) called for scrapping on-call time rules, compensatory rest and holiday roll-over.

Several Conservative politicians have advocated getting rid of the Working Time Directive altogether. Dominic Raab MP said ‘Britain should secure a total opt-out from the Working Time Directive and scrap the UK Regulations’, while then leader of the Conservatives in the European Parliament Martin Callanan MEP said ‘Surely one of the best ways for the EU to speed up growth is to scrap the Employment and Social Affairs directorate in the commission, and repatriate its responsibilities to national governments. Then we could scrap the Working Time Directive…’

4. Any government that did take away paid holidays would be kicked out at the next election

This is a subset of the argument that no politician would argue for this, because they would be voted out – an argument that is touchingly naive at best, and of course ignores that people rarely vote in General Elections on one single policy.

But it’s actually dangerously complacent, too. Kate Hoey MP argues that ‘Roll back workers’ rights in the UK and you get voted out.’ She writes this nearly a year after a Prime Minister who (between 2010 and 2015) took away many key workers’ rights did indeed get re-elected?

And even if Ms Hoey ignores the 2015 election result, she is easily old enough to remember that Margaret Thatcher was re-elected twice as she ripped up worker and trade union rights throughout the 1980s.

5. The current entitlements are part of people’s existing contracts of employment and can’t be taken away

The legal opinion that the TUC obtained from leading employment barrister Michael Ford QC, which we published earlier this month, makes clear that, if the UK left the EU, it would be overly optimistic to rely on those contracts.

As Mr Ford told us, ‘contract law provides almost no protection against the party who is able to dictate the express written terms – hence the repeated need for statutory intervention’.

He continued that ‘an employer who wishes to change workers’ terms and conditions to their detriment can, at common law, simply dismiss them on notice and give them offers of new, worse, terms and conditions. As a matter of contract law, this strategy, commonly employed in the context of e.g. pay cuts in recent years, involves no breach of contract – dismissal is on notice, in accordance with the contract, and the workers then ‘agree’ to the new terms. The workers options are to have no job or to accept new, worse, terms. It has the result that what look like contractual ‘rights’ are effectively written in sand: the employer can dictate their content by its unconstrained right to dismiss and to replace them with new terms and conditions.’

And that’s to say nothing of anyone employed after a post-Brexit government started tinkering with rights to paid holidays.

6. It would be better if holiday rights were left to the British Parliament

Some people consider any action at EU level illegitimate, but we think people who have benefited from the extra paid leave guaranteed by the European Union may feel differently.

Those people – low-paid, part-time, working mums for example – rarely get a good deal out of Westminster, and certainly didn’t until we managed to mobilise trade unions across Europe to demand better rights, and won reasonable interpretations of those rights – initially rejected by the British courts – from the ECJ. Even the Blair Government that originally introduced the right initially excluded those with less than 13 weeks service. This position was overturned by a case taken to the ECJ by the film and theatre technicians’ trade union BECTU.

Some have even gone so far as to suggest that if the UK left the EU, paid holiday rights could be extended. There is nothing to stop a UK government proposing extra rights, as the Labour Government did when it decided that bank holiday leave should be in addition to the rights conferred by the Working Time Directive. The Directive merely sets minimum rights, so it can be topped up at any time.

So, would Brexit mean the end of the British holiday? Almost certainly not. But would it mean many people – possibly millions – got less time to spend with their friends and family? Very likely.

And that’s without even thinking about where those holidays would be taken once we left the European Union, with its Mediterranean beaches, Tuscan holiday homes and French camp sites.

Owen Tudor is Head of the European Union and International Relations Department at the TUC

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