Did P&O use an EU loophole?

Brexit, as Boris reminded us many times during the referendum campaign, would give Britain the power to make its own laws, unencumbered by constant directives from the European Commission. But it will take a long while to disentangle UK laws from the influence of the EU, as the government may be about to discover in its attempt to punish P&O ferries for sacking 800 workers and replacing them with agency staff.

At last week’s Prime Minister’s Questions, Johnson declared that P&O had contravened section 194 of the Trade Union and Labour Relations Act 1992, which required employers to give the government 45 days’ notice of any intention to make more than 100 workers redundant. The penalty was specified as an unlimited fine. But has an EU directive incorporated into the legislation in 2018 disempowered the government from doing this? That appears to be the view of Andrew Burns QC who this week gave evidence on the P&O situation to a parliamentary committee.

The Prime Minister appears to have overlooked section 193A of the Trade Union and Labour Relations Act, which was added to the legislation in 2018 in order to comply with an EU directive designed to give greater protection to seafarers. The effect of the amendment means that instead of having to give 45 days’ notice to the UK government, a company operating a ferry in UK waters would have to give notice to the country whose flag the ship was bearing. In the case of the P&O ships, that’s Cyprus. The UK government is constrained in what action it can take because the new clause failed to say what action either the UK and Cypriot governments could take in such a situation.

Conservative governments do not often score highly in the opinion of trade unionists – and in many ways that is a good thing. But here, it seemed, was a chance for Boris Johnson to win a victory against an employer that had acted especially callously against a group of workers, all of whom were dismissed in a video call. Not only would it be a Conservative government taking the action, but it would also be employing a piece of legislation passed by an earlier Conservative administration – a clear win for a government that needs the votes of former Red Wall seats. But has the government disarmed itself, using a poorly-drafted amendment passed in response to an EU directive that was imposed on Britain in the dying days of our membership? We will have to see.