(thorogood reports) patricia leighton-european employment law (thorogood reports) -thorogood (2010)

8/17/2019 (Thorogood Reports) Patricia Leighton-European Employment Law (Thorogood Reports) -Thorogood (2010)

1/150

EU EMPLOYMENT LAW

A PRACTICAL GUIDE

Patricia Leighton

A Thorogood Special Briefing


2/150

This page is left blank intentionally


3/150

EU EMPLOYMENT LAW

A PRACTICAL GUIDE

Patricia Leighton


This book is essential reading for anyone who needs clear and

concise information on the practical effects of EU legislation in

the workplace. The increased mobility of workers in the EU

makes it more important than ever that EU employment

legislation is understood, implemented effectively and businesses are compliant. All too often, people have found

EU law inaccessible and unnecessarily complex, which is why

Professor Leighton’s approach in this book is so refreshing

and will be valuable to so many people.

Liz Lynne MEPVice President of the European Parliament’s Employment and Social Affairs Committee

Liberal Democrat European Employment and Social Affairs Spokesperson

“

”


4/150

Thorogood Publishing Ltd

10-12 Rivington Street

London EC2A 3DU

t : 020 7749 4748f : 020 7729 6110

e: [email protected]

w : www.thorogoodpublishing.co.uk

© Patricia Leighton 2010

All rights reserved. No part of this

publication may be reproduced,

stored in a retrieval system or

transmitted in any form or by any

means, electronic, photocopying,recording or otherwise, without the

prior permission of the publisher.

All rights reserved. No part of this

publication may be reproduced,

stored in a retrieval system or

transmitted in any form or by any

means, electronic, photocopying,

recording or otherwise, without the

prior permission of the publisher.

This Special Briefing is sold subject to

the condition that it shall not, by way

of trade or otherwise, be lent, re-sold,

hired out or otherwise circulated

without the publisher’s prior consent

in any form of binding or cover other

than in which it is published and

without a similar condition including

this condition being imposed upon

the subsequent purchaser.

No responsibility for loss occasioned

to any person acting or refraining

from action as a result of any materialin this publication can be accepted by

the author or publisher.

A CIP catalogue record for this

Special Briefing is available from

the British Library.

ISBN: 978 185418684 3

Printed in Great Britain

by Marston Digital

Other Titles from

Thorogood Publishing

Effective Recruitment – A Practical

Guide to Staying Within the Law

Patricia Leighton and Giles Proctor

IT Contracts: Effective Reviewing,

Negotiating and Drafting

Rachel Burnett

Email – Legal Issues: 2008Susan Singleton

Freedom of Information Act

in Practice: 2008

Susan Singleton

Websites and the Law

Susan Singleton

Commercial Litigation – Damages

& Other Remedies

Robert Ribeiro

Corporate Governance

David Martin

Software Contract Agreements

Robert Bond

New TUPE Regulations

Robert Mecrate Butcher

International Commercial AgreementsRebecca Attree

Special discounts for bulk quantities

of Thorogood books are available to

corporations, institutions, associations and

other organisations. For more information

contact Thorogood by telephone on 020

7749 4748, by fax on 020 7729 6110, or

email us: [email protected]


5/150

Contents

Preface .........................................................................................................v i

About the authors......................................................................................vii

List of abbreviations.................................................................................viii

1 INTRODUCTION 1

The aims of this report ................................................................................3

UK employment law ....................................................................................3

A summary ...................................................................................................6

What areas of HRM practice are most affected by

EU employment law? ..................................................................................7

Frequently asked questions (FAQ).............................................................8

2 LAW MAKING IN THE EU (By Richard Owen) 11

Introduction................................................................................................12

Soft law ......................................................................................................14

Challenging legislation..............................................................................14

Law processes............................................................................................15

Council presidency....................................................................................16

Legal base ...................................................................................................17

Consultative bodies ...................................................................................18

Right of legislative initiative .....................................................................19

Legislative procedures – Special legislative procedure .........................20

Legislative procedures – Ordinary legislative procedure......................21

Social dialogue – negotiating in the shadow of the law ........................23

Delegated legislation – comitology .........................................................23

The UK government is not enforcing EU employment law correctly.

What can be done?....................................................................................24

Frequently asked questions ......................................................................25

iii A THORO GO OD SPEC IAL BRI EFING


6/150

COMMERCIAL CONTRACTS – LEGAL PRINCIPLES AND DRAFTING TECHNIQUES

iv A TH ORO GO OD SPE CI AL BR IEF ING

3 A BRIEF HISTORY OF THE EVOLUTION ANDKEY FEATURES OF EU EMPLOYMENT LAW 27

Introduction and overview of the scope and key directives .................28

The key areas for EU legislation .............................................................29

The phases of development of law...........................................................30

Question 1 – Why do we need EU employment law at all?...................31

Question 2 – What are the general features of EU employment law?

How different are they from UK law? .....................................................33

Question 3 – How interventionist should EU law be,

especially the ECJ? ....................................................................................34

Question 4 – What about traditional collective labour relations? .......34

Question 5 – Where are we now?............................................................35

Impact of EU employment law to date....................................................35

Impact on HR practice ..............................................................................36

A postscript… the EES..............................................................................37

Question 6 – Why is this of relevance to HRM? ....................................38

Summary points ........................................................................................38

The chapters on substantive areas of law...............................................39

4 EQUAL TREATMENT OF MEN AND WOMEN 41

UK law.........................................................................................................42

EU law.........................................................................................................43

Key case-law on EU equal pay provisions ..............................................44

Equal treatment for men and women......................................................49

5 PROTECTION OF OTHER GROUPS

FROM DISCRIMINATION 55Part A: Other protected groups ...............................................................56

Part B: Atypical/non-standard working..................................................63

Summary points.........................................................................................73

6 FAMILY-FRIENDLY MEASURES 75

UK law.........................................................................................................76

EU legislation .............................................................................................77


7/150

Case-law from the ECJ..............................................................................79

Implications for HRM................................................................................82

Summary points.........................................................................................83

7 FREEDOM OF MOVEMENT 85

The UK situation ........................................................................................86

EU legislation .............................................................................................87

The legislation itself...................................................................................88

Case-law from the ECJ..............................................................................90

Implications for HRM................................................................................93

Summary points.........................................................................................93

8 HEALTH AND SAFETY AT WORK 95

Traditional UK position .............................................................................96

EU health and safety law ..........................................................................97

The key Directives......................................................................................99

Case-law from the ECJ............................................................................101

Implications for HRM..............................................................................103

Summary points.......................................................................................105

9 MAKING BUSINESS CHANGES 107

UK traditional approaches to change....................................................109

EU legislation ...........................................................................................110

Case law from the ECJ............................................................................112

Acquired rights/transfer of undertakings.............................................113

ECJ case-law ............................................................................................114

Implications for HRM..............................................................................118

Summary points.......................................................................................119

10 HELPFUL SOURCES 121

1. Websites................................................................................................122

2. Books and articles................................................................................123

CONTENTS

v A THORO GO OD SPEC IAL BRI EFING


8/150


9/150

About the authors

Professor Patricia Leighton is Emeritus Professor of Employment Law and

former Jean Monnet Professor of European Law at the University of Glamorgan,

Wales, UK. She was a Professor at the College of Europe from 1997 to 2005, for

which she undertook a number of projects, in particular, dealing with the employ-

ment laws of EU applicant states. She has taught and undertaken research with

a number of educational and governmental bodies in many EU member states

and currently teaches European Law in France. She also writes on compara-

tive aspects of law as a Visiting Academic at Monash University, Australia.

Professor Leighton also works as a consultant and trainer for CAPITA Learning

and Development, for whom she runs the PEEL Club (Personnel Experts in

Employment Law), including hosting an annual Study Visit to EU institutions and

law makers in Brussels. She also contributes to the seminars, policy develop-

ment and publications of a number of organisations that support and advise flexible

workers, such as contractors and freelance workers. She is the author of several

books on employment law and contributes to leading academic and practitioner

journals. Her recent publications include Out of the Shadows: Managing Self-

employed, Agency and Outsourced Workers (2007) with M Syrett, R Hecker and

P Holland (Butterworth-Heinemann) and Effective Recruitment: A Practical Guide

to Staying within the Law (2nd Edition, 2009) (Thorogood Publishing).

Professor Leighton is a member of the European Movement.

Richard Owen, who contributed Chapter 2 of this book, is Associate Head of

the Law School at the University of Glamorgan. He is an established author in

European Law having written texts on EU Law and Tort. He also writes and

lectures for Law in a Box (www.lawinabox.tv).

AB OUT THE AU THO RS

vii A THORO GO OD SPEC IAL BRI EFING


10/150

EU EMPLOYMENT LAW – A PRACTICAL GUIDE

viii A TH ORO GO OD SPE CI AL BR IEF ING

List of abbreviations

1. Legislation and law –making institutions

Art. Article

COR Committee of the Regions

COREPER Committee of Permanent Representatives from Member States

Council Council of Ministers

CE Council of Europe

Dir. Directive

EC European Commission

EESC Economic and Social Committee

EP European Parliament

LT Lisbon Treaty, 2009

SEA Single European Act (1973)

TEU Treaty of the European Union (1992)

TA Treaty of Amsterdam 1998

TR Treaty of Rome (1957)

2. Courts

ECJ European Court of Justice

ECHR European Court of Human Rights

3. Legislation

See individual chapters Under Soft Law

EES The European Employment Strategy

4. Other

OECD Organisation for Economic Co-operation and Development


11/150

LIST OF ABBREVIATIONS

ix A THORO GO OD SPEC IAL BRI EFING

5. A glossary of terms and phrases used in EU law

or commentaries on it

• “Civil law” – the basis of law in most EU states with its origins in Roman

Law, re-enforced by the Codes Napoleon. Legislation establishes the

basic legal principles.

• “Common law” – the legal system of the UK and Eire, along with many

Commonwealth countries. It is case-law based, i.e. the law develops

from the application of rules to given factual situations. There is a strong

role for judges in not just applying legal rules but in developing the

law itself. It operates very differently from the civil law.

• “European social model” – a model that emphasised high skill, high

wage and high social security and other protections. Especially welldeveloped in the Nordic/Scandinavian countries.

• “Directives” – agreed legislation by the EU requiring member states

to ensure by a set date that their national legal provisions are in line

with it.

• “Flexicurity ” – a model developed around 1995 and which now

dominates policy making. It aims to ensure that the need for employer

flexibility is matched by worker security, though not in terms of job

security, rather in terms of social security, training and employability.

• “Subsidiarity ” – enabling decision-making to be made at the lowest

level appropriate, usually at national level, including through collective

bargaining. It enables member states to reflect national provisions and

traditions.

• “Gold plating” – when national governments take the opportunity

during the process of transposing EU law into national law to add items

or aspects not required by EU law or to further complicate law.

• “Social dumping” – where states with a less demanding regulatory

regime that impacts on labour costs are able to “undercut” states that

make more demands and therefore increase costs on employers. Many

EU laws are specifically designed to avoid “social dumping”.

• “Social law” – this usually simply means employment law to us in the

UK.

• “Social partners” – organisations that represent employers or

employees and also the self-employed/small business community.

• “Social dialogue” – negotiations between the social partners.


12/150

• “Soft-law” – measures and agreements that establish guidelines or

advice but which do not provide rights for individual workers. The

guidelines might apply to a sector, an activity (such as homeworking/

teleworking) or to governments. Measures that provide rights or

obligations that can be enforced through courts are called “hard law”.

• “Social policy agreement ” – an agreement between the social partners,

following the Maastricht Treaty that provided for law making in this way.

Usually, they have become “hard law”. Examples are the Directive on

Parental Leave (1996) and the Part-time Work Directive (1997).

• “Teleological” – the required method of interpreting and applying EU

law. This means that courts must reflect the stated aims of EU legislation

in their approach to applying it in national courts, not simply its

wording. This rule applies to national legislation that implements EU

laws in the law of each member state.


x A TH ORO GO OD SPE CI AL BR IEF ING


13/150

Chapter 1

Introduction

The aims of this report

UK employment law

A summary

What areas of HRM practice are most affected by

EU employment law?

Frequently asked questions (FAQ)



14/150

Chapter 1

Introduction

European employment law is as old as the EU itself, in that the Treaty of Rome,

1957, included a requirement for equal pay between men and women. This was

an extraordinary intervention, given that we did not in the UK begin to consider

legislating for equal pay until the late 1960s. The driver for the Treaty provision

was that of preventing member states competing on an “un-level” playing field,

i.e. that those countries that permitted low pay for women were able to trade

more cheaply. This remains a key driver of EU law in a situation where there isa direct link between labour costs and employment law costs, and therefore the

ability to compete with manufacturers and service providers across the Union.

It is always important to set the legal rules for employment within this

economic and multi-national environment. Employment law becomes very impor-

tant for all member states in the context of it affecting all cross-border activities

and where the policy intention is clearly to ensure fair competition.

The Four Freedoms of the EU are:

• Freedom of movement for individuals and businesses.

• Freedom of trade, with the removal of all direct and indirect barriers.

• Freedom of capital, so as to allow cross-border investment.

• Freedom to provide services, with barriers, whether they be legal,

financial or of any sort removed.

The Four Freedoms underpin EU policy making and law, and the strength of

the underpinning philosophy should not be underestimated. We have had contro-

versies in the UK about “British jobs for British workers”. We have also had

complaints about the numbers of Polish and other workers in the UK. However,

we need to remember the numbers of UK nationals freely living and working

in other parts of the EU who should also have unobstructed access to labour

markets and employment. The “British jobs” etc. mantra can only be achieved

by the British workers having the skills and aptitudes required for the work and

cannot be achieved through obstructing the employment of other EU nationals.

Essentially, the EU is one labour market!


2 A TH ORO GO OD SPE CI AL BR IEF ING


15/150

All of these Freedoms impact on employment relations and employment law.

They require the removal of barriers, say, to recruitment, training and qualifi-

cations so that EU citizens can move to work in other member states.

Businesses, including self-employed people, must also be able to move to other

states and come to the UK from other states.

The aims of this report

The aims are fairly simple. They are to:

• Explain the origins, aims and approach of EU law to workplace issues.

• Identify the key characteristics of EU employment law.

• Consider the different approach of EU law to traditional UK employment

law.

• Explore the major areas of EU employment law.

• Assess the practical impact on employing organisations and HRM

practices.

• Respond to common queries and issues.

UK employment law

This is just a reminder of the features of our law – its content, procedures and

remedies. These are the matters that we take for granted as being “the way things

are done”. It is the impact of EU employment law on these traditions that is so

important to understand.

Employment law does not have a long history in the UK. It grew out of the twin

sources of first, the law of master and servant and, second, legislation applying

to various (typically) low-skilled occupations such as labouring and farm work.

Another influence was the law that applied to professions and skilled activities,

whereby the professions were largely self-regulating and autonomous. Employ-

ment law, as a distinct area of law, began to emerge in the 19th century with

some protective legislation for those working in dangerous industries and with

restrictive legislation applying to trade unions.

1 INTRODUCTION

3 A THORO GO OD SPEC IAL BRI EFING


16/150

In this respect it is important to note that trade unions, their members and trade

union funds and activities have only recently been in receipt of some protec-

tions in law in the UK, and that even today workers have no express right to

withdraw labour and those who do run many risks. This is in marked contrast

with other EU states, where going on strike is generally protected through the

constitution and individuals are rarely penalised.

At the heart of our employment law is the contract of employment . The law

has always applied the notion of “freedom of contract” and the idea that contracts

are, indeed, negotiated much as a commercial contract would be. Relevant features

of employment contract law are:

• There are virtually no limitations on the type of employment contract

an employer can offer. There is no requirement, for example, to establish

a short term need before offering a fixed term contract; no requirement

that part-time numbers are limited or minimum hours offered and no

ban on zero-hours and similar contract forms.

• There are relatively few requirements as to the terms that must be

provided (the National Minimum Wage (NMW) and paid holidays being

key exceptions).

• There is considerable legal weight attached to the form and content

of a written contract of employment. Such a contract normally

overrides all other sources of terms, excluding legislation, but

including collective agreements, oral agreements, company practices,

etc. It is not surprising therefore that such importance is attached to

the form and wording of the contract and to the other documents that

are typically part of it, such as disciplinary rules.

• The notion of “agreement” is taken seriously, especially when changes

to terms are contemplated.

• Over the years the courts have added important implied terms to the

terms that have been expressed by the parties. Of considerable

importance is the implied term of “trust and confidence” that, essentially,

cements the employer/employee relationship and requires supportive

conduct that emphasises the interdependence of the employment

relationship. The duties of fidelity, professional care and responsiveness

to lawful orders are imposed on the employee and the employer must

pay the agreed wages, provide a safe working environment and

indemnify the employee against loss. Outside the common law system

(i.e. also in most parts of the EU) the contract of employment is of lower

significance, set against legislation/codes and collective agreements.




17/150

The other key areas of “traditional” UK employment law are:

• Anti-discrimination law . Now a massive area of law and recently

subject to a major piece of legislation – the Equality Act, 2010. The UK

developed law applying to race very early (1968) and to disability and

gender re-assignment in advance of most EU member states. In terms

of the awareness of and enforcement of law, sources of advice and

support, the UK is one of the leading nations in the EU. However, some

of the protections available outside the UK, such as for political beliefs,

family background and education have only very recently begun to

be recognised in the UK. The law is still largely rooted in the

employment contract and its terms, especially for the purposes of equal

pay legislation.

• Health and safety law . This is long established in the UK, but originally

based on specific industries and activities, with a strong link to the

common law notion of taking “reasonable care” for workers. This is

an area of law that has had to make significant adjustments to the

different approach of EU health and safety law that is based on risk

management rather than “reasonableness”.

• Protective rights have developed in UK law rather spasmodically. There

has long been protection of earnings (Wages Act jurisdiction), which

first emerged in 1833, rights to information about terms of work, notice

periods and payment rights during lay-offs etc. The key rights of

redundancy payments and unfair dismissal emerged in 1965 and 1971,

respectively. They require payment of compensation and the law does

not generally intervene to question the need for redundancy, though

unfair dismissal law does require dismissals to be handled well and

for the employer to have grounds.

It is to be noted that UK law has only rarely questioned employers about

“why” they took a particular decision (to relocate, use agency temps

rather than directly employed staff, to dismiss rather than re-deploy

etc.).

Importantly, also, aside from the situation of large-scale redundancies,

they do not need to notify anyone or seek approval. Again this is in

contrast with most other EU states.

• Family-friendly rights have been an emerging feature of UK

employment law, with increasingly supportive maternity, paternity and

other rights encouraging the better balancing of family life and work.

1 INTRODUCTION



18/150

• Trade unions and collective action has been both tightly regulated

and treated in a distinctive manner in the UK. Trade unions are controlled,

much as companies are. Industrial action has to follow prescribed

procedures, collective agreements are not normally legally binding and

those involved in strike action remain at risk of job loss, especially where

the action they took was “unofficial”. Trade union membership, in an

EU comparison, remains relatively high in the UK, but the ability of trade

unions to influence decision making appears to get progressively weaker.

• Enforcement of rights is complex in the UK. Statutory rights are

enforced through Employment Tribunals which are specialist courts

that contain lay members. This is a situation shared with most other

EU member states. However, contract rights still generally have to be

enforced through the ordinary civil courts, as do compensation claims

under health and safety laws and challenges to decision-making by public

bodies.

• Government responsibility for employment law has become

increasingly fragmented. We have no discrete Ministry of Labour or

the like and responsibilities are shared between the Department for Work

and Pensions and the Department for Business, Innovation and Skills,

with many smaller units and quangos playing important roles.

A summary

Traditional UK employment law is:

• Dominated by the contract of employment.

• Dependent on the notion of “freedom of contract”, in such a way that

“opting out” and other forms of discretion are important features.

• Characterised by contract law being very legalistically applied, often

using norms from commercial law.

• Hugely influenced by anti-discrimination law.

• Has employment rights, especially the major ones, reserved for

employees only.

• Subject to legislation and case-law that, broadly, question how

decisions are made and implemented, not why or whether they are

needed at all.




19/150


20/150

• The terms of work of part-time workers and fixed term/fixed task

employees and, in 2011, temporary agency working (but not all flexible

work patterns).

• Business changes and restructuring.

• Internal communication systems.

• Staff management and career management.

• Provision of occupational benefits, including holidays, maternity

benefits and some “family friendly” matters.

• Health and safety/well being, including working hours and on-

call/standby working.

Overall, this is a wide agenda that is affected. However, it is not just a matter

of the rules from the EU that impact but also the way in which they do and the

type of demands made on employers. There is also the question of “soft law”

measures, such as Opinions and Recommendations (See Chapter 3). Do

employers also have to comply with them and what happens if they don’t? Let

us now turn to some frequently asked questions on EU employment law.

Frequently asked questions (FAQ)

This book refers to EU employment law, but isn’t it

EC employment law?

The answer is “Yes”. Employment law is technically still part of the European

Community (EC) provisions, but for reasons of convenience, EU is used in this

book.

Why does it matter that I know about EU employment law? Surely the UK government will bring in British laws to implement it?

It matters because the nature of law is different and even if the government has

the prime responsibility for complying with EU law, some employers can still

be liable if the UK government fails to act correctly. The UK government does

not act as a “shield” for employers, so it is important to be aware of the demands

of EU law. Individual claimants can rely on EU law when pursuing claims in UK

courts and tribunals and it must be borne in mind that EU law always “trumps”

UK law (see Chapter 3 in particular). Employers in the public sector need to be




21/150


22/150

on disability rights for carers was actually referred by an ET). The ECJ acts as

the “guardian” of EU law but it is not an appeal court for litigants.

Is the European Convention on Human Rights part of EU law?

The answer is “No”, although there are some similarities. The ECHR was devel-

oped almost immediately after the Second World War by the Council of Europe.

This has a membership well beyond the EU and the ECHR deals primarily with

basic freedoms (of expression, to life, of family life, to a fair trial and protection

from degrading and inhumane treatment etc.). The European Court of Human

Rights is based in Strasbourg and, unlike the ECJ, individual litigants can have

access to it. The EU has a Charter of Fundamental Rights which is now a part

of the Lisbon Treaty. It covers slightly different topics and is more aspirationalin nature.

Do I need to speak or understand French?

The simple answer is “No”. However, as a proposed law is often first drafted in

French and cases in the ECJ are sometimes only reported in French, it helps if

you understand French.

The company I work for is Japanese owned. Isn’t it immune fromEU employment law?

No: all enterprises that operate within the EU are covered by the law.

Where do I find out more about the law?

This book contains useful sources but to keep up to speed the www.euractiv.com

website is handy, along with the main website www.europa.eu. All documents

from the EU are downloadable free, as there is no copyright claimed for EU

materials.




23/150

Chapter 2

Law making in the EU

(by Richard Owen)

Introduction

Soft law

Challenging legislation

Law processes

Council presidency

Legal base

Consultative bodies

Right of legislative initiative

Legislative procedures – Special legislative procedure

Legislative procedures – Ordinary legislative procedure

Social dialogue – negotiating in the shadow of the law

Delegated legislation – comitology

The UK government is not enforcing EU employment law

correctly. What can be done?

Frequently asked questions



24/150

Chapter 2

Law making in the EU

Introduction

Law making in the EU differs in many respects from UK law making in West-

minster. There are a number of different legislative procedures and, in addition,

there can be special procedures for delegated legislation as well as EU employ-

ment law involving the ‘social partners’, i.e. organisations representing

employers and employees, as well as the self-employed/small business commu-

nity. This process is known as ‘social dialogue’. Opportunities exist to transform

agreements reached through social dialogue into legislation. So, EU employ-

ment law can be made in the following ways:

• Law making procedures

• Social dialogue agreements

• Agreement to transform social dialogue agreements into law

There is no one legislative body at the EU level. The three main actors in legisla-

tive procedures are:

• The European Commission

• The Council of Ministers

• The European Parliament

They all have a legislative role and the passage of legislation requires a constant

discourse between the three of them. Each one of these institutions represents

a particular interest.




25/150

Each one of these institutions has a defined role in law making to ensure that all

of these interests are represented. This is a principle known as ‘institutional balance’.

There are also methods of challenging EU legislation with no equivalent in respect

of UK law. Unlike the UK, where there is no written constitution and every Act

of Parliament is of equal status, in the EU there are primary laws and secondary

laws, with the primary laws having higher status.

The primary laws are the founding Treaties and the secondary laws are:

• Regulations

• Directives

• Decisions

Regulations bind everyone and do not need national legislation to give effect

to them – i.e. once they are passed in Brussels they become law in all 27 Member

States.

Primary legislation

Secondary legislation

Secon ary egis ation

Commission

Community interestCommunity interest National interest

Council of Ministers

Nationa interest

European Parliament

Peoples of the

Member States

Peop es o t e

2 LAW MAKING IN THE EU



26/150

Directives set a binding aim on the national governments – a ‘result to be achieved’.

National governments must achieve this aim by passing some form of national

legislation within a certain period – the ‘implementation period’.

Decisions are binding on individuals or groups. They are often used in compe-

tition law – e.g. to set a fine for a company or cartel that’s breached competition

law.

Soft law

In addition to those different types of law specified above, the Commission has

used new ways of developing policy, for example, notices, codes of practice,recommendations and opinions. Although they are non-binding and therefore

not capable of being challenged by the courts, they can be used for evidential

purposes. For example, if an employer can prove compliance with a code of prac-

tice, e.g. on harassment, that is strong evidence that the employer has not breached

the law. These are known as ‘soft law’ methods. ‘Soft law’ methods have been

relied on strongly in the formulation of the EU’s employment policy since the

2002 Lisbon European Council, in a process known as the Open Method of Co-

ordination. It’s a method of rule making that allows for the agreement of policy

guidelines through exchanges of information on:

• Best practice

• Benchmarking

• Monitoring

• Target setting

• Peer review

Challenging legislation

Legislation can be annulled or declared invalid by the European Court of Justice

(ECJ) if:

• There is no power to pass the secondary law under the founding Treaties

• It was not passed according to the correct procedure

• It infringes one of the EU’s general principles

• The law was not passed in the public interest – e.g. the legislature acted

fraudulently




27/150

Whilst only the ECJ can annul legislation or declare it invalid (there is little prac-

tical difference in the effect of either of these declarations) a UK court can

temporarily declare EU secondary laws invalid. However, if it does so, it must

refer the case to the ECJ for an authoritative ruling.

All EU legislation has to respect these principles:

• Subsidiarity

• Proportionality

The former essentially requires that all decisions should be taken at the

national level unless action would be better taken at the EU level. The latter

requires that the legislator can only take such action as is proportionate to the

aims of the legislation. At times, this has been a very challenging principle for

the UK’s legal system, although it is now becoming embedded. It challenges the

traditional British view of the role of the judiciary, which has always been seen

as subordinate to the UK Parliament. Under the principle of proportionality, if

the judge thinks that the aim of the legislation could have been achieved in an

alternative manner that is less restrictive of people’s freedom, then that alter-

native should be used. This places the judge in a quasi-judicial role, questioning

the legislature’s actions, which until recently was not part of British legal culture.

However, there are many examples in which a breach of the principle of propor-

tionality has been the successful basis for legal action challenging the legality

of EU legislation.

Law processes

In order to understand how EU employment law is made, it’s necessary to have

some understanding of how the Brussels machine works. If a sufficiency of the

Member States, particularly the larger States, do not support an employment

law proposal, it will not get off the ground and will be strangled at birth. Also,

the Member States will not always take decisions based on the merits of legis-

lation but will sometimes make labyrinthine horse-trading deals involving

different, unrelated pieces of proposed legislation. For example, when the Tempo-

rary and Agency Workers Directive (2008/104/EC) was first mooted in 2002, the

UK government opposed it. However, the government eventually entered into

a compromise deal and agreed to support it provided opt outs in the Working

Time Directive were retained. This agreement was shown not to be built on firm

foundations when the European Parliament made its views plain – that it would

not support continuation of opt outs!




28/150

Brussels is one of the lobbying capitals of the world and those most likely to

influence the content of legislation retain a presence there. The EU’s institutions

are in a process of continual discussion and those law making processes which

fall short of the formal legislative procedures can be best influenced, for example,

by employers’ organisations or the European Trade Union Confederation (ETUC),

which retain offices in Brussels to communicate their members’ objectives and

concerns quickly to all the different actors.

Council presidency

At present, each Member State takes its turn, in rotation, to be president of the

Council of Ministers for a six-month term. One of the advantages of holding

the Council presidency is that a Member State not only calls meetings but also

sets the agenda for them. This has huge implications for the EU’s social agenda

as it provides some indication at the start of a Presidency as to whether there

is likely to be any progress in proposed employment legislation at the start of

a six-month term. For example, a national government with a deregulatory labour

market agenda is not going to be putting new employment law measures on

the agenda, whilst a Member State with high levels of employment protection

is going to be very keen to see employment law measures high on the agenda

as it will be eager to see other Member States adopt at least a minimum level

of protection so that its producers are not unduly economically disadvantaged

by facing higher labour costs. Of course, holding the Presidency and setting

the agenda does not guarantee that the Council will agree the proposed measure.

For example, in the latter half of 2006 Finland held the Presidency and declared

from the outset that one of its highest priorities was to get agreement within

the Council on an amendment to the Working Time Directive (2003/88/EC), but

was unsuccessful, probably for a combination of reasons. Firstly, it is not a popu-

lous State so lacks the political muscle of larger States; secondly, the measure

was too controversial and lacked a sufficiently large critical mass of support.

The Treaty of Lisbon, which came into force in December 2009, changed the

running of the Council with the intention of creating greater continuity. It

proposed that the heads of government meetings be led by a Council President

appointed for a renewable 2½-year term. When government ministers at a lower

level than the head of government meet, the Treaty of Lisbon provides for a “team

presidency” for the Council of Ministers.




29/150

Legal base

Every piece of EU legislation must have a legal base – i.e. it must state which

section (or Article) of the founding Treaties has given the EU the power to passthat particular piece of legislation. The legal base will specify the type of legisla-

tive procedure that should be used, as the choice of procedure will affect the

powers the European Parliament has over the passage of the legislation and

determine whether the national governments, in the Council of Ministers, must

agree the legislation unanimously or can pass it by a majority vote. The type of

vote the Council of Ministers takes indirectly affects the powers the Commis-

sion has over the legislation as well. All legislation begins with a draft proposal

from the Commission but it does not have the final decision over whether the

legislation is passed. If the Council of Ministers takes a majority vote then it’s

more likely that the Commission’s draft proposal will not need as much amend-

ment, as it’s not necessary to get the agreement of 27 different governments,

which is no easy task. If the legislation has to be agreed unanimously then compro-

mises are much more likely to be necessary with the result that the Commission’s

proposal is likely to be changed.

Article 19 of the Treaty on the Functioning of the European Union is an

example of an important legal base in EU equality law, as it prohibits discrim-

ination on grounds of ‘sex, racial or ethnic origin, religion or belief, age, disability

and sexual orientation’. It was used as the legal base for various Community anti-discrimination measures such as the Framework Employment Directive

(2000/43/EC), the Race Equality Directive (2000/43/EC) and Directive 2004/113/EC

implementing the principle of equal treatment between men and women in the

access to and supply of goods and services. Article 153 of the Treaty on the

Functioning of the European Union is a further important legal base for employ-

ment law measures and is discussed further below.

In the early days of the EU the choice of legal base rarely gave rise to contro-

versy. However, as the powers of the European Parliament have grown, so have

the number of ‘legal base’ cases, as the choice of legal base can affect its powers.

It can be another, technical way of challenging legislation which is not to the

complainant’s liking. For example, in Case C-84/94, UK v. Council, the so-called

‘Working Time Directive case’, the UK government challenged the legal base

of the Working Time Directive. The government had been pursuing a deregu-

latory labour market policy and was therefore opposed to the Directive, but had

abstained when the matter had been before the Council. Instead, it challenged

it before the courts on the basis of an incorrect legal base as it objected to using

a health and safety base rather than an employment base from which the UK




30/150

had opted-out at that time. The UK also argued that the measure was contrary

to the principle of subsidiarity. Although the UK government was unsuccessful

on both counts, the case illustrates the type of challenge that can be made at

the EU level which simply does not exist at the domestic UK level due to Britain’s

lack of a written constitution and EU-style hierarchy of laws.

Consultative bodies

In addition to the law making institutions of the Commission, Council of Minis-

ters and European Parliament, the Treaty provides for consultative bodies:

• The European Economic and Social Committee (EESC)

• The Committee of the Regions

They have to be consulted on employment legislation passed under Article 153

of the Treaty on the Functioning of the European Union.

The European Economic and Social Committee consists of three groups:

• Employers

• Employees

• Various interests

The latter consists of diverse organisations including:

• Farmers’ organisations

• Small businesses

• The professions

• Cooperatives and non-profit associations

• Consumer organisations

• Environmental organisations

• Associations representing the family

• Persons with disabilities

• Non-governmental organisations

Although this would seem, from its composition, the natural body for groups

interested in employment law to lobby, it has not been an outstanding success.

One of its main difficulties is that the interests of the different groupings frequently




31/150

clash, so it is difficult for it to achieve agreement in a timely manner. It is not

unknown for it to forward its opinion on proposed legislation to the European

Parliament after the Parliament has considered it, which makes its opinions less

influential than they could be.

The Committee of the Regions consists of representatives of local and regional

authorities. Employment policy is included in the areas where it must be consulted.

It is widely regarded as more influential than the EESC, particularly in matters

relating to the distribution of regional funding.

Right of legislative initiative

As stated above, all legislation originates from the Commission. This is totally

different from UK law making, in which legislation has to be introduced into

the UK Parliament and there is no equivalent of a Private Members’ Ballot

affording backbenchers the opportunity to bring forward draft legislation. The

European Parliament can “request” legislation under Article 225 of the Treaty

on the Functioning of the European Union, but it means just that – it is a request

which the Commission can decline. However, under a Framework Agreement

in 2001, the Commission has committed itself to ‘a prompt and sufficiently detailed

response’ to Article 225 requests.

Under Article 11 (4) of the Treaty on European Union there is a right of citi-

zens’ initiative which requires the European Commission to respond to a proposed

change in European law signed by at least one million EU citizens. At the time

of writing, the European Commission is developing the rules and procedures

for exercising this right. There is also a current right to petition the European

Parliament and that has led to legislative change in the past. Given the scale of

support that is needed should the right of citizens’ initiative come into force,

and the relative rarity of a Parliamentary petition leading to legislative change,

for all practical purposes these are not channels that any lobbyist is likely to useon a regular basis to effect change at the EU level.

There are other ways which lobbyists are likely to find more effective if they wish

to influence the content of draft EU employment law at this stage. The Commis-

sion will often use technical groups or specialist advisers when drafting legislative

proposals. Again, those who are well organised in Brussels or have a lot of resources

are best placed to participate in these activities. The UK Permanent Representa-

tion to the EU, which is a type of embassy, recommends forwarding views early

in the legislative process to maximise the chances of influencing the content of




32/150

legislation successfully. The Permanent Representation’s role is to represent the

UK in negotiations that take place at the EU level, ensuring that Britain’s inter-

ests are heard by the EU’s institutions. They have a number of teams, including

one for social and environmental matters which includes their employment law

and anti-discrimination representatives. As their members of staff are involved

in negotiating detailed EU legislation, it is worth contacting them when seeking

to influence the shape of legislation. Their web address is http://ukeu.fco.gov.uk/en/

Another way to influence legislation is to participate, possibly through some

form of grouping, in public consultations.

Legislative procedures – Special legislativeprocedure

When this legislative procedure is used, the legislative proposal is put forward

by the Commission and a decision is taken on this proposal by the Council of

Ministers following a consultation of the European Parliament. The European

Parliament’s opinion must be sought – and if it is not then the legislation can

be annulled – but once obtained, it is not binding on the Council, which is the

sole decision maker when this procedure is being used.




33/150

The special procedure is used for the following legal bases which are of interest

to employment lawyers:

• Article 19 – anti-discrimination legislation

• Article 25 – citizenship rights

• Article 153 (including consultation with the EESC and the Committee

of the Regions) – social security and social protection of workers;

protection of workers where their employment contract is terminated;

representation and collective defence of the interests of workers and

employers; conditions of employment for third country nationals legally

residing in Community territory

Legislative procedures – Ordinary legislative

procedure

Under this procedure, which is set out in Article 294 of the Treaty on the Func-

tioning of the European Union, as always, the right of legislative initiative is

with the Commission, but the decision to adopt the legislation is taken jointly

by the Council and the European Parliament. Under this procedure the Euro-

pean Parliament will have two readings of the legislation. After the first reading,

the European Parliament will forward its opinion to the Council, following which

the Council will arrive at a ‘common position’.

First reading (ordinary legislative procedure)

Commission

Committee of

the Regions

EESC

Council of Ministers

European Parliament

Proposal

Proposal




34/150

During the second reading, the European Parliament will approve, reject or

propose amendments to the Council’s position. If the European Parliament and

the Council cannot agree, a Conciliation Committee will be set up consisting of

an equal number of representatives from the Council and European Parliament

with the Commission mediating. If they cannot reach agreement, the proposed

legislation will lapse. In practice, there are informal meetings existing along-

side the Conciliation Committee.

Second reading (ordinary legislative procedure)

The ordinary legislative procedure is used for the following items under Article

153 of the Treaty on the Functioning of the European Union, following consul-

tation with the EESC and the Committee of the Regions:

• Improvement in particular of the working environment to protect

workers’ health and safety

• Working conditions

• The information and consultation of workers

• The integration of persons excluded from the labour market

• Equality between men and women with regard to labour market

opportunities and treatment at work

European Parliament

Accepts

European Parliament

Proposes Amendments

European Parliament

Rejects

Legislation

Adopted

uropean Parli

ccepts

Legislation

Adopted

t urme

Rejects

ses Amen

Common Position

Conciliation

Committee




35/150

Social dialogue – negotiating in the

shadow of the law

The Commission will consult the social partners if it is minded to pass employ-

ment legislation under Article 153 of the Treaty on the Functioning of the

European Union. It must first consult them on whether they would prefer to

go down the legislative route or whether they would prefer to seek an agree-

ment amongst themselves. If they choose the social dialogue route they will

negotiate in the knowledge that if they fail to reach agreement, the Commis-

sion may come forward with its own proposals, which creates an incentive to

finalise an agreement in case the Commission’s proposals are even less to their

liking. If successful, the social partners can reach autonomous agreements, which

they can implement themselves or request that they be transformed into bindinglegislation. Legislation which has come about as a result of the social dialogue

route includes:

• The Parental Leave Directive (96/34/EC revised 18 June 2009)

• Part-time Work Directive (97/81/EC)

• The Fixed Term Work Directive (99/70/EC)

Delegated legislation – comitology

A lot of detailed legislation is passed by the Commission but is supervised under

a complex committee system known as comitology. Initially, the European Parlia-

ment was excluded from comitology. With the increased use of the ordinary

legislative procedure, the European Parliament became increasingly unhappy

with this exclusion, which it felt was contrary to the spirit of co-decision. Since

the Comitology Decision of 1999 (99/468), which has been amended by Council

Decision 2006/512/EC, the European Parliament has been more involved in the

comitology procedure, which includes rights to information and to oppose the

adoption of measures under the comitology procedure.




36/150

The UK government is not enforcing EU

employment law correctly. What can be done?

Directives have to be transposed into national law, as they only set a binding

aim and this aim is achieved and fleshed out through national legislation. What

if this national legislation is defective in some way? What can be done?

1. If you are trying to enforce your rights under a directive against a public

body, then you can do so under the principle of ‘direct effect’. In other

words, you could rely on the directive itself rather than the national

legislation if the national legislation is defective in some way or the

government has failed to implement the directive. However, in order

to do this a strict set of conditions apply. The directive’s implementation

period must have expired and the rights under the directive must be

clearly set out and identifiable. Note that you can only rely on a directive

against a public body and not an individual or a private sector company.

If you wish to enforce EU law employment rights against an individual

or private company, you need to consider steps 2 or 3 below.

2. Insist that the national judge interprets the national law to conform

with the Directive. This is a principle known as ‘indirect effect’ or

‘conform interpretation’. However, the national judge is only under

such an obligation if it’s possible to do so. S/he can only be under this

obligation if it’s possible to interpret national legislation in this way.

S/he cannot overturn national law if its meaning is clearly in conflict

with the Directive.

3. Sue the national government for breaching your rights for either not

implementing the Directive or implementing it incorrectly. If it’s the

latter then it must be shown that the government’s breach was

‘sufficiently serious’. This is a difficult concept as it’s not enough to

prove the government was in the wrong. It must be proven that the

government was seriously in the wrong.




37/150

Frequently asked questions

How do I influence EU legislation?

• The golden rule is to get in as early as possible

• Keep abreast of what’s happening in Brussels and the priorities of the

Council Presidency

• Express concerns to groupings who are well organised in Brussels,

such as employers’ organisations, professional bodies, trade

associations and ETUC

• Contact the UK Representation to the EU

• Participate in consultations on legislation

• Petition the European Parliament

• Better still, participate as a specialist when the Commission is

formulating its proposal

EU employment law has been passed and I want

to know if I can object

Challenges can be made on the basis that:

• It breaches the EU’s powers

• It has not been passed according to correct procedures

• It breaches a general principle of EU law or the incorrect legal base

has been used

If you wish to challenge before the ECJ, very strict tests have to be satisfied proving

that the complainant has sufficient standing. However, challenges can be made

before national courts, although if a national court declares EU law invalid it

must refer the case to the ECJ.




38/150

This page is left blank intentionally


39/150

Chapter 3

A brief history of the evolution and

key features of EU employment law

Introduction and overview of the scope and key directives

The key areas for EU legislation

The phases of development of law

Question 1 – Why do we need EU employment law at all?

Question 2 – What are the general features of EU employment

law? How different are they from UK law?

Question 3 – How interventionist should EU law be,

especially the ECJ?

Question 4 – What about traditional collective labour relations?

Question 5 – Where are we now?

Impact of EU employment law to date

Impact on HR practice

A postscript… the EES

Question 6 – Why is this of relevance to HRM?

Summary points

The chapters on substantive areas of law



40/150

Chapter 3

A brief history of the evolution and

key features of EU employment law

Introduction and overview of the

scope and key directives

This chapter provides an overview of law and information about the key direc-

tives that are to be considered in more detail later in the Report.

In developing the agenda, the EU has prioritised those topics that are most likely

to achieve agreement between member states, as well as being seen as the most

important for an efficient labour market. Therefore, the following have dominated:

• Topics that are thought to be important for social cohesion and social

justice for modern democratic states.

• Matters thought important for the Single Market, mobility and

integration.

• Those that are already developed in member states and will therefore

be relatively easy to promote across the EU.

• Those considered relevant for competitive economies and to encourage

reconstruction and regeneration.

• Those thought necessary for a “level playing” field and to avoid “social

dumping” (for definition see Chapter 1).

• Measures that might help to diffuse opposition to change, especially

where, potentially, job losses might be involved.

The aims of this chapter are to:

• Provide an overview of the legislation generated by the EU and its

sources.

• Trace the evolution of the legal rules.

• Explore the nature of EU law and how it differs from UK law.




41/150

• Note the policy drivers.

• Note the key role for “soft law”, especially the European Employment

Strategy.

The key areas for EU legislation

Before outlining the key areas of law, it is vital to note the key role of

lobbying in the legislative process. Most law is the subject of debate and

compromise and therefore represents the law that is acceptable to the

vast majority of EU states.

• Protection from discrimination at work on grounds of sex. The key

directives are:

– Equal Treatment Directive, 1976 Dir 76/207

– Equal Treatment for Social Security, 1986 Dir 86/378

– Equal Treatment: self-employment, 1986 Dir 86/613

– Burden of Proof Directive, 1997 Dir 97/80

– Equal Treatment in the Provision of Services, 2004 Dir 2004/113

– Equal Treatment Directive, 2006 Dir 2006/54 (The recastingDirective)

– Equal Pay Directive, 1975 Dir 75/117

• Protection from discrimination on other protected grounds. These are

currently race/ethnicity, disability, sexual orientation, age and religion

and belief.

– Framework Directive on Equal Treatment, 2000 Dir 2000/78

– Directive on Racial or Ethnic Origin, 2000 Dir 2000/43

• Health and safety at work. This is the largest area of employment

legislation from the EU, with over 40 directives. Many are grouped

according to hazard-chemical, biological and physical agents, the last

including noise, electro-magnetic fields and vibration. There are

specialist directives on matters such as asbestos, lead and measures

to protect particular groups, such as pregnant women, young workers

and temporary (agency/outsourced) workers. The key directives are:

– Framework Directive on Health and Safety at Work, 1989 Dir 89/391

3 A BR IE F HI ST OR Y OF TH E EV OL UT ION AN D KE Y FE ATUR ES OF EU EM PL OY ME NT LAW



42/150

– Hazardous Agents Directive, 1977

– Pregnant Women Directive, 1992 Dir 92/85

– Working Time Directive, 1993 Dir 93/104

• Protections during business changes and restructuring. Many of the

earliest pieces of EU legislation deal with issues of redundancy, mergers/

acquisitions and outsourcing changes. The major directives are:

– Collective Redundancies, 1998 Dir 98/59

– Acquired Rights/Transfer of Undertakings (Amendment), 2001 Dir

2001/14

• Freedom of movement for workers to obtain jobs or be seconded across

the EU and to establish businesses in other parts of the EU, along with

supportive measures, such as mutual recognition of qualifications and

skills.

– Workers Directive, 1968 Dir 68/360

– Right of Establishment, 1973 Dir 73/148

– General System for Recognition of Diplomas,1989 Dir 89/48

– Second General System for Recognition of Professional Education

and Training, 1992 Dir 92/51

– Dir 2005/36 on the Recognition of Professional Qualifications

– Posting of Workers, 1996 Dir 95/71

• Provision of information and consultation with employees and/or their

representatives in addition to the requirements relating to redundancies

and transfers.

• Rights for some atypical/non-standard workers, such as part-timers,

teleworkers, fixed term workers and agency temps.

• “Family friendly rights” such as maternity rights and parental leave.

The phases of development of law

1. Early laws from 1957: equal pay, some health and safety, equal

treatment for men and women, 1976; Acquired Rights, 1977.




43/150

2. Stagnation 1977-86: the requirement for unanimity on voting for

Directives slowed things as there is growth in the number of member

states.

3. Regeneration and activism 1986 to 1997: from 1986 “qualified

majority voting” (roughly two thirds of member states have to

support a proposal) led to health and safety changes, the Social Charter,

the Maastricht Treaty and social agreements on new laws – parental

leave, part-time work, etc.

4. Consolidation and new initiatives from 1998 and the Treaty of

Amsterdam: the rise of “soft law” through the EES and several

important new Directives, including the 2000 Equal treatment Directive.

5. Reflection (and recession?) 2006 onwards: although some measureshave been adopted, such as the Temporary Agency Work Directive

2008 and a revised European Works Council Directive, 2009, more

recently there has been failure (over Working Time amendments) and

delays over measures on maternity and equal treatment (2008-10).

It is again important to note those employment law topics that do not feature,

and thus remain exclusively covered by UK law. These include:

• Collective labour relations, other than matters of information and

consultation.

• Industrial action.

• “Ordinary” matters of discipline and dismissal.

• Pay and reward systems generally.

• Most occupational benefits.

• Social security, the public employment services, etc.

Question 1 – Why do we need EU employment

law at all?

Many still regard the EU as essentially an economic and trading organisation.

Others accept that it is better to co-operate with other nations regarding “border-

less” issues, such as security, public health, consumer protection, environmental

issues and cross-border crime. But why employment law? There are many

employers and politicians who see any law as a burden (red tape?) and employ-

ment rights as especially burdensome.




44/150

The reasons that are put forward in favour of developing employment law that

is consistent across member states (even though the form that law takes can

vary) are:

• If we have a Single Market for capital, goods, services and people, we

should have regulatory consistency (in Euro-speak, “convergence”)

across states as regards the workplace. This enables people to move

more freely, and not sacrifice rights if they move to work in another

country.

• Some strong political views that the EU should focus as much on

protecting the rights of its people as creating successful and competitive

economies. There are also moral obligations, it is argued, to support

the disadvantaged, encourage participation in the labour market,

promote full employment and avoid social disruption caused by high

levels of unemployment.

• As the costs of protective legislation impact directly on labour costs,

and therefore business costs, there should be a “level playing field”

across the EU. Failure to have consistent legal obligations on all

employers leads to “social dumping”, i.e. undercutting prices and

businesses in countries that provide greater protections.

Comments

There is a very long-running debate as to whether employment laws/rights make

economies uncompetitive with emerging economies and lead to job losses in

EU states. We have seen the outsourcing of work to countries such as India and

Malaysia, reportedly due in part to their less demanding employment laws. Others

argue that legal protections, especially as regards job security, inhibit innova-

tion and flexibility. However, others argue that far from inhibiting competitiveness,

a well trained and protected workforce ensures that workers are valued and

remain loyal and productive.

So, what is the evidence? It is quite mixed because the most productive and effi-

cient economies, according to the OECD, include USA (relatively little regulation)

and Sweden, Denmark and France (higher levels of regulation). This may indi-

cate that law is a less important factor than we often think it is when it comes

to impacting on the effectiveness of businesses. Or, perhaps, that other factors,

such as investment in training and management, are more important?




45/150

However, the debates and controversies do remain important in that they explain

the opposition to various proposed or amended Directives. These include:

• The Working Time Directive, 1993, and attempts to revise it, including

through the removal of the UK’s “48 hour opt-out”.

• The long running struggle to legislate for temporary agency workers.

Protections were proposed in 1983 and only accepted in November

2008.

It must also be borne in mind that we in the UK see EU law as controversial

because we have traditionally had very little legislation affecting employment

(see Chap 1). For many EU states, EU legislation merely confirms pre-existing

rules and requires, at worst, relatively minor amendments to them.

It might also be noted that currently there are no completely new topics for legis-

lation, though much existing law is being amended or expanded.

Question 2 – What are the general features of

EU employment law? How different are they

from UK law?

It will be recalled from Chapter 2, that EU employment legislation can take various

forms. The individual forms impact differently on employers.

Legislation can take the form of:

• Articles of the Treaties and subordinate Regulations. (These are

binding on all employers with immediate effect.)

• Directives that establish legal requirements for member state

governments to ensure provisions are implemented in their countries.

Directives have a set timetable, and once that has ended, public sector

employers are bound by the requirements of the Directive even if the

UK government has not transposed the law.

• “Soft law” measures, such as Recommendations and Opinions. These

do not create enforceable rights for individuals, but set out good practice

or guidance. “Soft law” also includes the EES (see below).

• All law is initially drafted by the European Commission.




46/150

The features of most EU legislation are:

• Legislation tends not to be detailed and complex.

• It sets down basic principles that are then applied by the ECJ andnational courts, or are implemented through national legislation.

• EU law increasingly aims to reflect measures by global organisations,

such as the International Labour Office (ILO and its Recommendations

etc.) and the Organisation for Economic Co-operation and Development

(OECD). It has Guidelines for members who are the 30 most developed

world economies.

• Legislation has clear policy underpinning. This is set out in a Directive’s

Preamble and explains clearly why the law is considered necessary and

why it has adopted a particular style and content. Sometimes, the

Preamble is followed by a section on General Considerations, though

it is unclear what their status is. The Preamble is vital for an understanding

of the way EU law works, as courts and tribunals are required to formally

reflect the Preamble in their judgments. This is called the “teleological”

approach to statutory interpretation.

(See also Chapter 2)

Question 3 – How interventionist should EU law

be, especially the ECJ?

This is currently much debated, with two fundamentally different approaches.

The first says that employment rights are essential for successful economies and

even in recession it is vital to ensure workers are not exploited for economic

reasons. The counter argument says employment rights are costly, cannot be

afforded in a recession and that member states should anyway be free to find

their own solutions and not “bullied” by the ECJ, which is not democratically

elected anyway.

Question 4 – What about traditional collective

labour relations?

This is an area of increasing tension. Labour relations have inevitably been affected

by the general decline in trade union membership, but unions still see them-




47/150

selves as (uniquely?) protecting workers. EU law is, though, increasingly requiring

“workers’ representatives” to be involved, not necessarily trade unions, in organ-

isational and legislative consultations. Collective agreements generally have a

higher status in many member states (but not higher than legislation) as regards

terms of work, and recent ECJ case-law suggests that the EU “competitive agenda”

is more dominant than support for the traditional labour relations agendas.

Question 5 – Where are we now?

As referred to above, the last three years saw relatively little new legislation,

aside from the TAW Directive and a revised European Works Council Direc-

tive, though there has been much “lower level” activity in terms of matters such

as recognition of academic and vocational qualifications between member states.

The key question today is the impact of changes introduced by the Lisbon Treaty,

2009. This gives increased powers to the European Parliament to amend or reject

proposed legislation (though not initiate it) and decision-making at the Council

of Ministers should also be speedier, with the use of qualified majority voting

for virtually all employment law matters. It is likely that 2010-11 will see more

amendments to existing law, including the relatively little known but increas-

ingly important Posting of Workers Directive 1996.

Impact of EU employment law to date

It has been emphasised that the impact of EU law is not so much in terms of

the rules/requirements of law but often its emphasis on procedures and

approach. For example, although the UK has had protections for people affected

by redundancy since 1965, UK law basically requires the employer to financially

compensate the employee for their job loss, based on a strict formula. Ques-

tions of whether the employer needed to make people (or so many people)

redundant, as opposed to re-training, redeployment, changing job status, etc.,

and whether people were properly consulted about the changes, were not orig-

inally required by UK law. EU law demands consultation, in a timely manner

and for employers to seek ways of reducing the impact of the declining need

for skills. This means that consultation must occur prior to a decision being made

and the consultations should be meaningful. Employers should also consider

such matters as part-time working and reducing overtime. ECJ case-law has

been strict in its application of EU legislation.




48/150

At the same time, it has to be recalled that in some respects UK law and prac-

tice is ahead of EU law. For example, our anti-discrimination/equal treatment

agenda has been wider than EU law. Our public sector duty to “promote” equality

on grounds of sex, ethnicity and disability is a far wider obligation than in current

EU law. Similarly, our family-friendly laws are more advanced than EU law. We

(thorogood reports) patricia leighton-european employment law (thorogood reports) -thorogood (2010)

Documents