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Employment Law and the EU Influence.

Employment law in the UK has undergone major changes in recent times, particularly in the last 20 years or so, with the EU exercising a significant influence on many areas of UK law.

History and Background

The European Commission takes responsibility for the co-ordination of national policies on labour, market, and workplace regulation. The treaties of the EU establish these areas of competence.

The Treaty of Rome, signed in 1957 by the six founding states (France, West Germany, Italy, Benelux), stated in Article 140 that one of the objects of the Community was to harmonise laws relating to employment and labour law. This covered areas such as working conditions, health and safety, trade union law, and social security.

Ten years after an unsuccessful bid to join the European Community, the UK acceded to the Treaty of Rome in 1973. The European Communities Act 1972 provided that all obligations arising out of any treaty shall have legal effect in the UK without further enactment. Treaty articles are directly applicable and will override national law.

In addition to treaties, the EU may issue directives. These are binding as to the result to be achieved, but the member state must implement them in their own laws within a prescribed time limit set by the EU.

The Courts of Justice of the European Communities (ECJ) is based in Luxembourg, and is made up from one judge from each EU country, assisted by eight advocates-general. Their independence is guaranteed, despite being appointed by each of the member states governments. The ECJ’s role is to ensure that treaties are correctly interpreted and applied, and that EU law is complied with.

The Charter of Fundamental Rights was approved by the EU member states at the Nice Summit in December 2000. It set out a whole range of civil, political, and social rights to be enjoyed by EU citizens.  It was a political declaration, without legal force, but it became legally binding in the Lisbon Reform Treaty on 3 November 2009. The Lisbon Treaty amends the Treaty on the European Union (Maastricht) and the Treaty Establishing the European Community (Rome).

Examples of EU Law

Perhaps the most well known EU directive to be enacted into UK employment law is the Working Time Directive (93/104/EC of 23 November 1993). The original directive was amended by Directive 2000/34/EC of 22 June 2000.

The Working Time Directive is a collection of regulations concerning hours of work, designed to protect the health and safety of workers. Key features are the limiting of the working week to 48 hours in 7 days, and a minimum rest period of 11 hours in each 24 hours. The provisions of this directive, and the Young Workers Directive (94/33/EC), were enacted into UK law by way of the Working Time Regulations in October 1998.

Whilst some EU countries have sought to reduce working hours well below the 48 hour limit, under the Working Time Regulations it is possible to opt out or to average out the hours worked over a period of 17 weeks or more.

Employees’ rights to information about the business they work for were provided under the Transnational Information and Consultation of Employees Regulations 1999. This implemented the European Works Council Directive (94/95/EC). The regulations require a European Works Council (or EWC) to be established in companies with at least 1000 employees and at least 150 employees in each of two EU member states. Employee representatives are expected to receive information relevant to the terms and conditions of employment, and information about activities which may significantly affect the interest of those they represent. There must also be a written agreement on the arrangements for the information and consultation of employees.

The 1999 Regulations have been further enhanced several times under the Information and Consultation Directive 2002 (2002/14/EC), and presently, the Consultation of Employees Regulations 2004 applies to employers with at least 50 employees.

The Temporary and Agency Workers Directive (2008/104/EC) seeks to guarantee people who get jobs through employment agencies the same pay and conditions as permanent employees carrying out the same work in the business that they are employed.  Proposed by the European Commission in 2002, it was met with stubborn opposition from a minority of member states, the UK included. In the end the UK agreed to implement the Directive by December 2011.

The purpose of the Temporary Agency Workers Directive, as with all EU Directives, is to harmonise the law across Europe. As well as giving temporary workers more rights after a 12 week qualifying period, it also serves to prevent unfair competition between member states. It is also intended to prevent ‘social dumping’ – when employers move operations to other countries to take advantage of cheaper labour costs. The social function is to ensure a higher standard of living and quality of life, consistent with the aims of the European Union Treaty. On implementation, the UK’s 1.3m agency workers gained the same pay and conditions as permanent workers after being employed for 12 weeks.

Is the EU influence on UK law without limits?

There are times when the UK may be viewed within Europe as a rebel state, taking a “pick and choose” approach to EU law. Austria, Finland, Norway, Portugal, Belgium, Sweden and Spain all have working time limits of 39 or 40 hours a week, as a result of the Working Time Directive. A bold experiment by the French government in 2000 to introduce a 35 hour week resulted in industry and workplace agreements covering millions of workers, reducing working time and introducing more flexible ways of working. Yet, despite a vote by the European Parliament to end the UK opt out, the UK government are still determined to keep it. It is likely that the debate will continue.

In a report published in 2007*, the House of Lords European Union Committee stated that the relatively light regulation of the UK labour market, in comparison with some other EU Member States, has been advantageous in allowing a flexibility of employment arrangements which has benefited the UK economy. It did, however, conclude that problems of social disadvantage and structural unemployment, where these exist in the UK, would be better addressed by measures aimed at tackling poor skills and social inequality than by changing labour law.

Also, many member states of the EU see the Charter of Fundamental Rights as a useful addition to the European Convention on Human Rights. The UK government, however, has secured a written guarantee in the Lisbon Reform Treaty that the Charter cannot be used by the European Courts of Justice to alter British labour law, or other laws that deal with social rights. The negotiated protocol which is annexed to the Lisbon Treaty states the following –

• The charter does not extend the ability of the European Court of Justice, or any court or tribunal of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of the United Kingdom are inconsistent with fundamental rights, freedoms and principles that it reaffirms.
• In particular, and for the avoidance of doubt, nothing in Title IV of the charter creates justiciable rights applicable to the United Kingdom, except in so far as the United Kingdom has provided for such rights in its national law.

Predictably, there were mixed reactions to this agreement. Speaking in June 2007, the UK prime minister of the time, Tony Blair, said that the outcome of the talks made it “absolutely clear that the Charter of Fundamental Rights is not going to be justiciable in British courts or alter British Law”

The Deputy Director-General of the Confederation of British Industry (CBI), John Cridland, stated: “We welcome the government’s success in securing what appear clear opt-outs from the Charter of Fundamental Rights in areas that could have damaged the UK’s flexible labour market”

The General Secretary of the Trades Union Congress (TUC), Brendan Barber, said: “It is extremely disappointing to see that the UK workers and citizens are to enjoy fewer rights than those in the rest of Europe… Are we to think that the UK economy can only prosper by treating UK employees worse than others in Europe?”

Sir Menzies Campbell, the Leader of the Liberal Democrats at the time, similarly warned: “By opting out of the Charter of Fundamental Rights, there is now the danger of a two tier citizenship in the EU”

Perhaps until full public support is gained by way of a referendum on future treaties, the UK will not enjoy the same freedom and equality as the majority of Europe already does.