28 Nov 2018

Annex 4 to the Protocol in the Withdrawal Agreement aims to establish a level-playing field by stating that the UK and EU are to ensure that the level of protection does not fall below the level provided at the end of the transition period in the area of labour and social protection, fundamental rights at work, occupational health and safety, fair working conditions, information and consultation rights and restructuring. This is comprehensive and means that UK employment law derived from the EU – such as protection from discrimination, the right to equal pay and the right to paid holidays - should remain in place following Brexit. In addition, the UK and EU commit to implement effectively the ILO Conventions and European Social Charter. Lastly, the UK agrees to maintain an effective system of labour inspections, enforcement and remedies. It is not clear whether this is limited to health and safety matters or whether it refers to employment law generally. Neither is it clear how it will be enforced. However, there is some clarity around the role of the ECJ: the agreement states that the ECJ has jurisdiction until the end of the transition period, and judgments handed down before that date will apply in the UK.

The Political Declaration repeats the commitment to a level playing field in relation to social and employment standards in order to ensure open and fair competition. However, this promise is lacking in detail and it is not clear how it will be enforced (if at all), as the Political Declaration is not legally binding.