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The rules around British jobs for Britons

As massive job losses hit construction, it’s no surprise that old arguments have resurfaced about foreign workers operating in Britain.

But the vehemence of the “British Jobs for British Workers” row was still shocking. Seeing workers striking unlawfully and protesting was a new experience for me, at least.

Looking at the legal background is helpful as it shows why some of the measures sought by some – not all – of the protestors simply can’t be adopted.

So-called “economic nationalists” argue that a job should always be given to a British worker first, unless no suitable British worker exists. The problem with this is that it would be unlawful.  Any employer that took this approach would find itself sued in the Employment Tribunal and shelling out compensation and legal fees.

The reason for this is that European law effectively requires employers to treat all job applicants equally, regardless of nationality, provided that they are EU citizens. Therefore, giving a job to a worker because he is British, ahead of another worker who is Italian, for example, would break the law.

The government cannot change this law unless Britain leaves the European Union. Since none of the major political parties advocate this, it won’t happen any time soon. 

In the meantime, British workers gain as well as lose from this. An Italian employer would not be allowed to discriminate against British job seekers in favour of Italian workers, for example.

A more complicated argument revolves around the fact that foreign workers are sometimes employed in the UK on lower rates than British workers. Critics see this as “undercutting” the native workforce.

The EU Posted Workers Directive requires workers from other EU states to receive at least the UK minimum wage while working here. But it does not require them to receive any higher rates of pay required by, for instance, an agreement between the employer and a UK trade union.

The Government says it is looking at this. But it would be naïve to expect a change of law to provide a solution that satisfies everybody.

In the wake of Total using a cheaper Italian contractor in place of its previous British contractors, ACAS conducted a review. It found that the Italian firm was more productive than the British contractors despite being cheaper. Yet again, construction employers and employees alike therefore need to look at training, motivation and productivity management.

Improving these would deliver better results for British industry than protests and confrontation ever could.

Tom Potbury is a senior associate in the Employment law department of law firm Pinsent Masons