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A Thorogood Special Briefing

EU EMPLOYMENT LAW A PRACTICAL GUIDE

Patricia Leighton

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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 MEP

”

Vice President of the European Parliament’s Employment and Social Affairs Committee Liberal Democrat European Employment and Social Affairs Spokesperson

Thorogood Publishing Ltd 10-12 Rivington Street

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Effective Recruitment – A Practical Guide to Staying Within the Law Patricia Leighton and Giles Proctor

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© Patricia Leighton 2010

IT Contracts: Effective Reviewing, Negotiating and Drafting

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Email – Legal Issues: 2008

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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

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

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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

Contents Preface .........................................................................................................vi 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

A THOROGOOD SPECIAL BRIEFING

iii

COMMERCIAL CONTRACTS – LEGAL PRINCIPLES AND DRAFTING TECHNIQUES

3

A BRIEF HISTORY OF THE EVOLUTION AND KEY 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

55

Part 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

iv


CONTENTS

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


v

E U E M P L O Y M E N T L AW – A P R A C T I C A L G U I D E

Preface In 1989, I was working at what is now the Institute of Employment Studies. The employer members could nominate topics for research. This could be into pay, flexible working, recruitment practices, etc. One member said: “Tell us about this Europe thing! Rumour has it that, as employers, we ought to know more about it, so what is it going to mean for us?” As we now know, the answer to that question is – a great deal! The completion of the research Report1 for employers coincided with the considerable tensions and controversies leading up to the Maastricht Treaty of 1991. Employment law was suddenly high profile. The Treaty gave the UK a social (employment) policy Opt-out and many breathed a sigh of relief. However, three years before completing the Report, in 1986, the UK had agreed to probably the most radical EU treaty, which had established the so-called four freedoms (free movement of Goods, Services, Capital and, importantly, People) but had also introduced the possibility of Qualified Majority Voting for law-making for some topics. This prevented a few countries blocking legislation. Significantly, this change included health and safety. So, despite Maastricht, aspects of employment law moved on at speed in the next few years. Twenty years on, few would challenge the contention that not only is European employment law of considerable importance but it has also changed the way we think about the role of law in the workplace. It has also introduced a new vocabulary and an increasing number of work-related rights, and has put emphasis not only on what decisions employers make but also on how they make them. It is important to understand the “differentness” of EU law, as over the years the failure of governments and employers to take this on board has resulted in costly litigation, embarrassing losses and either the award of high levels of compensation or the need to change UK legislation. Undoubtedly, the EU has been the single most important driver of legal change and the nature and role of this law cannot be neglected. The EU has not just produced much employment law – it is different law!

1 The Europeanising of UK employment practices (1989) IMS Report

vi


ABOUT THE AUTHORS

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 employment 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 comparative 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 development 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 Selfemployed, 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).


vii


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

viii

Organisation for Economic Co-operation and Development


L I S T O F A B B R E V I AT I O N S

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 well developed 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.


ix


•

“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



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)


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 is a 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 important 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 controversies 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


1 INTRODUCTION

All of these Freedoms impact on employment relations and employment law. They require the removal of barriers, say, to recruitment, training and qualifications 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. Employment 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.


3


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 protections 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.

4


1 INTRODUCTION

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.


5


•

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.

6


1 INTRODUCTION

•

Relatively non-interventionist, leaving the UK to develop its “flexible labour market” whereby employers can determine the ways of working that suit their needs, with little role for external bodies to question/ monitor employers.

What areas of HRM practice are most affected by EU employment law? To an extent, the answer to this question is dependent on the role of law more generally and as a driver of organisational policy and practice change. Many employers, when asked, will report that law plays a major (and often a negative) role, and reserve most of their harshest criticisms for EU law. Law adds to costs, it is argued, and the aim should be for less law and less “red tape”. However, much law simply formalises good practice, although it is accepted that some areas of law are so complex that compliance is difficult. At the heart of many of the complaints is the sense that EU employment law is alien to our established practices and norms and is being “imposed” upon us. So, we have to recognise the strong feelings that the EU generally – and employment law in particular – can give rise to. Turning to the question itself, it is clear that some areas of practice have been impacted on by EU law more than others. This is because there are some areas that the EU is not competent to legislate on, as they are reserved for national law. Included here are: •

Pay and its setting (aside from equal pay).

•

Job security in terms of “ordinary” dismissals.

•

Industrial action.

•

Social security provisions, in terms of qualification, payments and their rate.

Despite this, most areas of HRM practice are affected to a greater or lesser extent. These include: •

Recruitment and selection practices, including recruitment from other parts of the EU.

•

Secondments/deployments to and from other parts of the EU.


7


•

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 oncall/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

8


1 INTRODUCTION

especially mindful, as sometimes the law affects them before private sector employers.

Doesn’t EU law recognise that we in the UK have a different legal system? To an extent, but the EU is about establishing a “level playing field” across member states. However, it does recognise, through subsidiarity, that we may transpose EU law in a way that is consistent with our laws and legal traditions. We must always, though, meet the policy objectives of the EU law in question.

I have heard EU law described as “superior” to ours’. What does this mean? It means that where the EU has competence to legislate on an aspect of employment relations, the UK courts have to recognise that if there is a clash of, say, scope of law, definitions, etc., between UK legislation and EU legislation, then the rules from the EU take precedence. Specific EU provisions cannot be ignored, replaced or otherwise changed unless EU law provides for this.

How different is EU law from our law? It is different not just in terms of the priorities of law but in how law is presented. In general, EU law clearly defines the problem it is trying to solve by legislating. (For example, poor working conditions for, say, part-timers, problems for people with disabilities in getting a job, problems in the rejection of those with qualifications different from those in the state in which they are applying for work, agency temps being exploited through low pay and insecurity etc.) It aims to improve the situation by providing individual rights that can be enforced in national courts. Put simply, the detail of legislation is preceded by a clear statement of its aims, and it then explains how a situation will be improved. UK law generally fails to explain itself in terms of aims and objectives. EU law puts this “up front”.

Where are cases on EU law heard? Generally they are heard within the member state’s courts and tribunals. In the UK it is normally in an ET. This is because EU law is part of national law. Cases are only referred by UK courts to the ECJ when they raise an important issue of law. The UK court does not have to be a superior court (the Coleman case


9


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 developed 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 aspirational in 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 from EU 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.

10



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


Chapter 2 Law making in the EU

Introduction Law making in the EU differs in many respects from UK law making in Westminster. There are a number of different legislative procedures and, in addition, there can be special procedures for delegated legislation as well as EU employment law involving the ‘social partners’, i.e. organisations representing employers and employees, as well as the self-employed/small business community. This process is known as ‘social dialogue’. Opportunities exist to transform agreements reached through social dialogue into legislation. So, EU employment 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 legislative 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.

12


2 L AW M A K I N G I N T H E E U

Commission

Council of Ministerss

European Parliament

Community interes interest st

National interest

Peoples of the Member States

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.

Primary legislation

Secondary legislation

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.


13


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 competition 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 practice, 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 Coordination. 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

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Whilst only the ECJ can annul legislation or declare it invalid (there is little practical 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 alternative 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 proportionality 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 legislation but will sometimes make labyrinthine horse-trading deals involving different, unrelated pieces of proposed legislation. For example, when the Temporary 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!


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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 populous 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.

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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 pass that particular piece of legislation. The legal base will specify the type of legislative 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 Commission 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 amendment, 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 compromises 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 discrimination 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 employment law measures and is discussed further below. In the early days of the EU the choice of legal base rarely gave rise to controversy. 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 deregulatory 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


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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 Ministers 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

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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 citizens’ 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 use on 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 Commission 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 Representation 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


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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 interests 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 legislative procedure 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.

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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 Functioning 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 European 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) Proposal

Commission

EESC

Proposal

Council of Ministers

Committee of the Regions

European Parliament


21


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 alongside the Conciliation Committee. Second reading (ordinary legislative procedure)

Common Position

European Parlia Parliament amen nt Accepts

EEuropean urop op pean Parliam Parliament men nt Rejects

Legislation Adopted

European Euro pean Parliament Parli Propo Amen Proposes Amendments

Conciliation Committee

The ordinary legislative procedure is used for the following items under Article 153 of the Treaty on the Functioning of the European Union, following consultation 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

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Social dialogue – negotiating in the shadow of the law The Commission will consult the social partners if it is minded to pass employment 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 agreement amongst themselves. If they choose the social dialogue route they will negotiate in the knowledge that if they fail to reach agreement, the Commission 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 binding legislation. 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 Parliament 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.


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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.

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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.


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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


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 directives 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.

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•

Trace the evolution of the legal rules.

•

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


3 A B R I E F H I S T O RY O F T H E E V O L U T I O N A N D K E Y F E AT U R E S O F E U E M P L O Y M E N T L AW

•

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 recasting Directive)

– •

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


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•

–

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.

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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 measures have 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 “borderless” 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 employment rights as especially burdensome.


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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 innovation 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 efficient economies, according to the OECD, include USA (relatively little regulation) and Sweden, Denmark and France (higher levels of regulation). This may indicate 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?

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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 legislation, 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.


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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 and national 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-

34



selves as (uniquely?) protecting workers. EU law is, though, increasingly requiring “workers’ representatives” to be involved, not necessarily trade unions, in organisational 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 Directive, 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 increasingly 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. Questions 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 originally 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.


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At the same time, it has to be recalled that in some respects UK law and practice 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 have also had, since 1963, requirements on employers to provide written information on terms of work, a matter not dealt with by the EU until 1991 and then with not much vigour (Employee Information 1991 Dir.91/533). So, the picture is more complex than might be thought with EU law not always in advance of ours and not always being the “cavalry coming over the hill” for workers’ rights. It is possible to provide a broad spectrum of EU law’s impact. The left handside represents those areas/topics where impact has been most keenly felt. The right-hand side represents those areas where EU law has had relatively little impact.

H&S

I&C

Org.changes

NSW* Equal pay

Equality

Cross border working

Status

Pay+

Disci/dismissal

Collective labour law * = Non standard work += Other than equal pay

Impact on HR practice Therefore, the following areas of work have probably been the most affected: •

Risk management in occupational health and safety.

•

Internal communications systems/consultation processes.

•

Recruitment practices, especially from other parts of the EU.

•

Reward and career management, especially as regards pay for women, part-timers and fixed term staff.

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•

Management of working time, breaks, holidays and on-call time.

•

Handling organisational change.



A postscript… the EES The forgotten aspect of EU employment law: the European Employment Strategy This is a complex type of “soft law”. Set in train by the Treaty of Amsterdam, 1997, it is a radical way of aiming to achieve labour market and employment change. The fact that few in the UK have heard about it or know how it works does not reduce its importance for HR managers and employers. Its origins lie in a Commission White Paper of 1993 that developed ideas to combat the then high levels of unemployment, especially among the young. By 1997 there were growing concerns about the EU remaining competitive in a global economy and it was decided that these issues could best be dealt with by the member states working together. The matters seen as critical were: •

Vocational training.

•

Reducing non-wage costs.

•

Using active labour market policies.

•

Increasing employment growth.

•

Supporting those facing particular problems in the labour market, such as women and people with disabilities.

The Strategy was to build Guidelines to be sent to each member state on employment policy, the Guidelines being initially grouped around Four Pillars. These were Employability, Entrepreneurism, Adaptability and Equal Opportunities, and the idea was that each year the governments of each state would report back to the Commission on measures they had taken to meet the demands of the Guidelines. The Guidelines dealt with matters such as the role of the public employment service (in the UK, Job Centre Plus) in, say, encouraging young people, lone parents and women into the labour market, and the removal of red tape in up setting a small business. The novel aspect of the EES was the Open Method of Co-ordination whereby the annual report from each state (National Action Plan) was reviewed by the Commission, and reported back on through the device of a Recommendation to each government, thereby setting up a system of benchmarking. The aim was to support best practice but also to “name and shame” poor government performance. The so-called Lisbon Process of 2000 set targets for labour market participation by women, older people and the young. In recent years the process has consolidated, with Guidelines set for two years or more and with a direct


37


integration with Economic Guidelines. There are now debates as to what has been achieved during the past 12 years, but until the banking crisis of 2008 there had been significant reductions in unemployment, improved training and the removal of many barriers to effective employment practices. However, most recently, the system has been criticised for lacking vigour and structure, with the current policy – “Europe 2020” aiming to build on its better features.

Question 6 – Why is this of relevance to HRM? The main reason is that it explains much recent UK policy development and has considerable relevance for many employing organisations. However, because the policies are developed by the UK government it does not appear that they are “European”. For example, the European Commission’s Recommendations to the UK government over the years have highlighted: that we perform badly on vocational training and re-training, and on child care provision (thereby limiting those who can work); that we have high absence levels for illness from the workplace; that the pay gap between men and women is especially high; and that there are insufficient incentives to get people into the workplace due to “over-generous” social security rights, especially Incapacity Benefit. Government measures to respond to these issues can be tracked, though the role of the EES is not openly acknowledged. Some of the measures have drawn on the experience of other member states in dealing with similar problems. We can see, therefore, that the Welfare Reform Act, 2009, and other measures to reduce the numbers on Job Seekers Allowance, the proposed extension of school opening hours to accommodate working parents, stronger measures in the Equality Act 2010 to counter unequal pay and the extension of training schemes, especially for the young, may well have their origins in the EES. The EES does not directly affect employers or make them liable to any sanctions. However, as a source of ideas and as a driver of policy and legal change it is an important process to be aware of.

Summary points •

The evolution of EU employment law has been one of ebb and flow, with periods of activity (late 1970s; late 1980s and the 1990s) interspersed with quiet periods.

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•

The employment legal agenda is not – and cannot be – comprehensive, though the EU approach to workplace issues is often very different from our traditional UK one.

•

Legislation has often proved highly controversial and some measures have been blocked, e.g. the revised legislation for working time, 2008.

•

EU legislation is generally easier to read and has clearly stated aims. Judgments of the ECJ are also less complex than UK judgments and law reports. The ECJ has been generally strongly protective of EU employment legislation, though, again, there has been ebb and flow in terms of creativity and passivity.

The chapters on substantive areas of law The following seven chapters deal with those areas of EU employment law that are well developed. Each chapter follows a pattern that: •

Sets out briefly the UK law on the topic.

•

Explains EU law, including key ECJ decisions on that law.

•

Explores the demands on employers and HR practitioners.

•

Suggests issues/areas to check.

The following topics are not explored, either because they are very specialised or are not strictly from the EU: •

Human Rights derived from the European Convention on Human Rights.

•

Data protection.

The chapters are: 4.

Equal treatment of men and women

5.

Protection of other groups from discrimination

6.

Family-friendly measures

7.

Freedom of movement

8.

Health and safety at work

9.

Making business changes


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Chapter 4 Equal treatment of men and women UK law EU law Key case-law on EU equal pay provisions Equal treatment for men and women


Chapter 4 Equal treatment of men and women

This is likely to be the most familiar of the European employment law topics. The basic strategy of both EU and UK law are broadly aligned, with familiar concepts, such as direct and indirect discrimination, harassment and victimisation, appearing in both UK and EU law.

Content of Chapter •

Equal pay

•

Equal treatment for men and women

•

Equal treatment of self-employed men and women

UK law The key pieces of UK law are:

a) The Equal Pay Act, 1970 (as amended) This established the basic legal approach to equal pay for men and women. It requires equal pay for “like work”, “work which is broadly similar” and for “work of equal value”. It does not require job evaluation to be undertaken but if one has been (work rated equivalent), it requires implementation. The Act inserts an “equality clause” in employment contracts and applies to both employees and “workers”, i.e. many self-employed people. The Act requires a real “comparator” but does enable the employer to justify “unequal pay” if there is a “material difference/factor” between the case of the man and the woman. Experts can be used to define “equal value”. Its basic approach uses the contract of employment as its starting point and requires detailed comparisons of terms of work and although group claims have become a major feature of recent litigation, especially in the public sector, the law remains technical and often controversial. (See now the changes introduced by the Equality Act, 2010.)

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4 E Q U A L T R E AT M E N T O F M E N A N D W O M E N

b) Sex Discrimination Act, 1975 (as amended) This deals with wider aspects of the treatment of men and women and covers “direct” discrimination (refusing a job, promotion, etc.) and “indirect discrimination”, which applies a condition to work which disproportionately disadvantages one sex or the other. Indirect discrimination, as opposed to direct discrimination, can be justified, though the way this is done has been materially affected by EU law. UK law also covers harassment, but again as a result of EU law. The UK notion of “victimisation”, i.e. being penalised at work for asserting rights, is also in part derived from EU law. Note also the Employment Equality (Sex Discrimination) Regulations, 2005, that made some definitional changes but also introduced the “soft law” duty “to promote opportunity” on grounds of sex by public bodies. There is no explicit legislation that applies to the self-employed, though many are covered by the worker definition so long as they “personally execute work” for an employer. Traditionally, compensation for breaches of these Acts was limited. Case-law on both equal pay and sex discrimination is extensive, though successful claims remain fairly unusual, despite, perhaps, media coverage that suggests the opposite!

EU law The main pieces of legislation are: •

For equal pay

Article 141 of the Treaty of the European Union, 1993, requires that: 1.

Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.

2.

For the purposes of this Article, “pay” means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of employment from his employer

Directive on Equal Pay 1975 Dir 75/117 This fleshed out Article 141 by requiring: •

Criteria referencing for “job classifications”.

•

Effective access to judicial process for those denied equal pay.


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•

Member States to eliminate inequalities in collective agreements, wage agreements or individual contracts of employment.

•

Protection from dismissal for making complaints.

Key case-law on EU equal pay provisions It will be recalled that the Member States are required to have provisions in their own state that meet the demands of the EU Directives. Should this not be the case, the European Commission can refer possible “breaches” to the ECJ and the ECJ decides on the matter. If there is a “breach”, Member States have to amend their laws. In the case of the UK, we did not have an “equal value” concept enabling comparisons to be made across jobs and occupations. This had led to low pay in traditional female jobs such as caring, catering and cleaning to remain unchallenged, as often there were no males employed in the “establishment”. Cases are referred to the ECJ by courts in Member States for clarification of the nature and scope of EU legislation. In equal pay claims a number of issues have dominated the caseload of the ECJ, mostly concerned with employers’ attempts to justify the status quo. Given the cost implications of equal pay claims this is unsurprising! Set out below are some of the key ECJ decisions that have practical significance. Many early cases involved access to rights by part-timers, though from 1997 and the Part-time Work Directive, part-timers have been subject to wider protections in any event. The two basic areas explored by the ECJ are: 1.

Who and what is covered by the right to equal pay?

2.

When are differences in pay justifiable?

1. Who and what is covered? The dispute has, of course, to be about “pay”. The ECJ straight way gave “pay” a very wide definition in that it clearly covers basic and enhanced pay, overtime, occupational benefits and occupational pensions, and also a Christmas bonus (Lewen v Denda 2000 C-333/97). Women on maternity leave have been held not to be entitled to pay as they have specific provisions applying to them. The provisions do apply to concessionary benefits, such as purchases, travel, accommodation, etc. (Garland v. British Rail Engineering (1982 C-12/81) – this dealt with concessionary rail travel).

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BARBER V. GUARDIAN ROYAL EXCHANGE (1990 C-262/88)

This confirmed that a “contracted out” pension scheme was “pay” and the fact that payment was deferred was not relevant. BILKA-KAUFHAUS V WEBER VON HARTZ (1986 C-170/84)

The claimant was a sales assistant in a German department store who had worked for some years full-time and then moved to part-time work. An occupational pension scheme required at least 15 years full-time service to be able to join it. She successfully argued that due to caring responsibilities more women than men worked part-time and that as pensions were part of pay, as a woman she had been discriminated against and denied equal pay. RINNER-KUHN (1989 C-171/88)

In this case German part-timers only qualified for pay during periods of sickness if they worked at least 10 hours per week. Full-timers got payment automatically. Most of the part-timers were women. Sick pay was held to be pay and the failure of the employer to justify the difference in treatment amounted to a breach of equal pay legislation. Although the law does not require the claimant and the comparator to have the same employer they should in some way be covered by the same terms and conditions of employment. These might come from a collective agreement applying to a number of employers or through an associated employer situation. What is the position when employees’ work is outsourced? Can they compare themselves with former colleagues? The ECJ has decided a number of cases on this issue. Clearly, there were fears that the law could get out of control and lead to inflation if some controls on the comparison process were not retained. LAWRENCE V. REGENT OFFICE CARE LTD (2002 C-320/00)

North Yorkshire Council contracted out a number of services, including cleaning and catering. The staff affected were made redundant and then re-employed by Regent. They brought an equal pay claim against Regent, citing their former colleagues as comparators. The ECJ rejected the claim. It stated: “Where the differences identified in the pay and conditions of workers performing equal work or work of equal value cannot be attributed to a single source there is no body which is responsible for the inequality and which could restore equal treatment”.


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Clearly, this is a practical decision and has been one that has been confirmed by Allonby v. Accrington and Rossendale College (2004 C-256/01). In this case, lecturers with fixed term contracts had them terminated and they were re-employed but through a teaching work agency. Equal pay claims with other college lecturers were turned down by the ECJ that re-enforced the need for a “single source” of terms of work as between the claimant and comparator. Can you compare yourself with a previous post-holder? In an early and radical decision by the ECJ, the decision seems to be “yes”. MACARTHYS LTD V. SMITH (1980 C-129/79)

A man was paid £60 a week as a stock room manager. He left in October 1975. M was appointed to the post for £50 a week. She claimed equal pay with their ex-employee and the legal issue was whether in making a comparison the two people had to be employed contemporaneously. No, said, the ECJ, providing the work was equal work

2. When are differences in pay justifiable? The EU equal treatment agenda quickly established the principle that “defences” to claims should be carefully scrutinised. “Unequal” pay could only be justified on grounds of having a “legitimate aim” (recruit to difficult posts, provide short term protections to pay during restructuring, etc.) but that the response by the employer should be “proportionate”. This introduced rigor and flexibility at the same time, whilst recognising explicitly the “principle of equality”. ECJ case-law and its emerging jurisprudence has frequently concerned the legitimacy or otherwise of arguments put forward to justify unequal pay. It was clear that a contractual agreement or collective agreement to unequal pay would not provide a defence, so the arguments moved on to greater subtleties. In early cases that went to the ECJ it was argued that the contribution made by, say, part-timers and casual workers was different and less beneficial to the employer and this would justify lower pay. JENKINS V. KINGSGATE CLOTHING ((1981 C-96/80)

Jenkins was a part-time machinist at a children’s clothing factory. All the fulltime machinists bar one were male and they earned more on an hourly rate than the female part-timers. The employer argued that there was a material difference in the situation in that the part-timers were in a different category. Although the arguments had some success in UK courts, the ECJ firmly rejected them.

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The court relied on the Preamble to the Equal Pay Directive of 1975 that there should be a principle of equality, and the fact that work is done on different bases, e.g. at home, at night, etc., is insufficient reasoning in itself to pay one group less. ENDERBY V. FRENCHAY HEALTH AUTHORITY (1993 C-127/92)

This was one of the longest running yet most important decisions of the ECJ. Enderby was a speech therapist who claimed equal pay on the basis of equal value with other specialist groups such as radiographers, psychologists and pharmacists in the NHS. Most of the workers in the comparator groups were male and most of the speech therapists were female. The employer argued that as long established collective bargaining processes fixed pay for the various professional groups the differences in pay were justifiable. The employer also raised the question of the relevance of relative difficulties in recruiting staff. The ECJ confirmed that having separate bargaining structures could not in itself justify unequal pay. On the “market forces” argument, the ECJ held that the evidence must be there and the employer response must be proportionate. This means that there must be a link between the relative difficulties in recruitment and the relative differences in pay. Perhaps the most important and groundbreaking recent issue has been the role of seniority in fixing pay. The long established decision of the ECJ in Danfoss (1989 C-109/88) had concluded that seniority does justify higher pay as there is a link between length of service and experience and skills. The argument that women, who typically either enter the labour market later, take breaks for child rearing, etc. and are hard hit by pay scales that attach overwhelming importance to continuous service, was rejected. The employer must have transparent pay practices but there is no special need to justify seniority as a criterion. An argument that longer service equals experience and skills development and benefit for the employer was accepted. In the recent case of Cadman v. HSE (2006 C-17/05) this approach (to some limited extent) has been successfully challenged, though the implications of the ECJ judgment remain hotly disputed. Cadman was an HSE inspector who was paid much less than colleagues doing the same job. The deficit, she alleged, was caused by her later entry to the role. The ECJ re-affirmed the basic proposition that length of service is generally linked to experience and competence. However, the door was slightly opened in that if seniority produces an obvious injustice (For example in a low skilled job where the argument about improved performance is very weak) it may be that a claim can be made. Recent cases in national courts have sometimes accepted this argument.


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Access to overtime payments by part-timers has been very controversial, with employers generally requiring part-timers to complete the normal full-time hours before qualifying for enhanced payment. (See page 67 for case law.)

Overall EU legislation and the ECJ have together challenged some of the basic causes of unequal pay. Legislation and case-law is less complex than in the UK, helped by the fact that there is only one judgment in the ECJ! Indeed, the law is easier to read and understand than UK law, as it sets out basic principles rather than detailed rules. However, words and phrases such as “transparency”, “proportionality” and the “principle of equal treatment” are not just slogans and are rigorously applied. The law has shown serious intent, not least in rejecting employer arguments for leaving pay structures untouched. Many of the legal debates on equal pay have now been dealt with and the role of the ECJ in equal pay is today much reduced.

Implications for HRM It is suggested that the major implications of EU equal pay law are: •

To note the wide definition of “pay”. Any benefit, whether discretionary or not, whether current or deferred, whether a “one off” or regular payment, is covered.

•

To look carefully at the case-law that has implications for recruitment and for reward systems generally. The application of the “legitimate aim” and “proportionality” rules apply even where jobs are hard to fill or where staff are hard to retain. Where a post-holder has left but the opportunity is taken to reduce pay, there are risks. The award of bonuses is an especially tricky area and needs to be criteria-referenced and to be transparent. We have seen in UK courts the vulnerability of “attendance allowances” and the like that appear to have little objective justification.

•

Where types of flexible working are dominated by women, such as “casual”, “stand-by” and on-call work, or with “contractors/freelancers”, issues of relative pay need to be checked out.

•

Pay structures that provide annual increments that are automatic, especially if they are not in any time barred, are now at some risk and should be reviewed if they have not been already in the light of age discrimination.

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Equal treatment for men and women This is an area of law where UK and EU law operate on the basis of similar rules and, indeed, legislation developed at virtually the same time.

UK law The key pieces of UK legislation are: •

Sex Discrimination Act, 1975 (as amended by the Employment Equality (Sex Discrimination) Regulations, 2005)

•

Sex Discrimination Act, 1986

•

Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations, 2001

The Act of 1975 set down the basic requirement that there should be no unjustified discrimination between men and women. It recognised “direct” as well as “indirect discrimination” and has gradually been amended to reflect EU legislation and case-law. Hence, harassment and victimisation have been added and some of the definitions varied. Much of our case-law has focussed on the failure to obtain employment or promotion and on harassment. UK law makes explicit reference to the need for one sex or the other in terms of “genuine occupations qualifications (now “requirements”) as, in effect, exemptions. (It might be noted that the European Commission has recently asked for a reduced number of “exemptions”.) UK law also protects married people and civil partners. It also recognises the discrimination that can occur due to pregnancy. The law requires a comparator, though hypothetical comparators can be used where necessary. It is important to note the growth of “soft law” measures in UK law. These require public bodies to “promote” opportunity for women, and although there are not dissimilar provisions in EU law, referred to as “mainstreaming” gender equality, UK laws are more rigorous, in terms of reporting, naming and shaming, etc. and are under the control of the Equalities and Human Rights Commission. The Equality Act, 2010 extends employer duties, especially public sector employers, and will include a duty to respond to “economic and social” disadvantage, allow for positive discrimination in some circumstances and make pay auditing a reality. It also develops a new terminology and ‘harmonises’ existing rules.


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EU law The key pieces of legislation are: •

Equal Treatment Directive, (1976) Dir 76/207, as amended by;

•

Directive 2002 Dir 2002/73 on the implementation of the principle of equal treatment of men and women as regards access to employment, vocational training and promotion, and working conditions

•

Equal Treatment for men and women: occupational social security schemes, (1986) Dir 86/378

•

Equal treatment: Self-employment (1986) Dir 86 86/613

•

Sex Discrimination: Burden of Proof (1997) Dir 97/80

These laws, taken together, aim to provide equal opportunity and treatment for men and women and, unsurprisingly, the legal formula is much as it is in the UK. EU law has: •

Direct discrimination.

•

Indirect discrimination, defined as “an apparently neutral provision, criterion or practice that would put persons of one sex at a particular disadvantage…unless…it is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”.

•

Harassment and sexual harassment (as defined in UK law).

Important have been the Burden of Proof provisions, though they have not yet had major impact in the UK. The EU recognised that winning a case in national courts was often problematic because much of the information to support the claim was held by the employer. This might include interview records, copies of references, emails between managers, etc. The Directive is couched in general terms. It states that: (If a claimant) can establish facts from which it may be presumed there has been direct or indirect discrimination, it shall be for the respondent to prove there has been no breach of the principle of equal treatment. Unfortunately, although case-law in the UK has interpreted this requirement very narrowly and has, with reluctance, sometimes shifted the burden of proof, there has been no significant ECJ case-law. It appears that although statistical data is helpful, unless a prima facie case can be established that indicates that the statistical data is the consequence of discrimination, the burden will not shift.

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ECJ case-law Much of the case-law has focussed on the rights of part-timers (before they got their own Directive in 1997) and maternity cases. However, the ECJ has also tackled some important issues regarding the jobs and roles that women have sometimes been excluded from and which, in effect, reduce career progression or access to enhanced pay. There has also been the controversial issue of “positive discrimination”. In Kriel v. Germany (2000 C-285/98) the ECJ held that the exclusion of women from combat units of the armed forces is unlawful. Any justification for exclusion has to be for a legitimate aim and has to be proportionate. There have been similar rulings with regard to women and night work, to carry arms in the police force and to be able to join the marines. The protection of pregnant women or women of child bearing age etc. has been very robust. The protections last for as long as the period of maternity leave provided by legislation. It is incorrect to compare the rights/benefits, etc. of pregnant woman with a man on sick leave. Pregnancy related rights are treated distinctly in EU law. The key decisions that the ECJ has made include: •

Disregarding a woman on maternity leave for pay rises, promotion or other benefits is discrimination (Thibault, 1998 C-136/95).

•

If steps are taken but not implemented to replace a woman while she is on maternity leave and she only learns about it when she intends to return, it will nonetheless be discrimination (Parquay, 2007 C-460/06).

•

Refusing to take on a candidate who was pregnant at the time of the selection is direct discrimination. The argument that there would be extra costs and, say, that the employer’s insurer had put pressure on, is not a valid justification (Dekker, 1990 C-177/88).

•

The fact that a pregnant woman was taken on a fixed term contract to cover maternity leave of another is discrimination, even though most of the fixed term period would be taken up with training and then maternity leave.

•

To refuse a woman on parental leave who discovers she is pregnant and wants to “swap” her leave for maternity leave is discrimination. (Kiiski, 2008 C-116/06).


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•

Confirmation that the maternity period does not break the period of continuous employment (Sass, 2004 C-284/02).

•

To deny the rights of transsexuals in the case of P v S (1996 IRLR 347), where it was held to be sex discrimination to dismiss a female posttransgender person who had been recruited as a male.

The protection of self-employed persons from discrimination on grounds of sex and the right not to be discriminated against in setting up a business has not given rise to any significant ECJ case-law. It must, however, be noted again that the EU notion of a “worker” does include most freelancers, consultants, contractors, etc., who work as individuals rather than as businesses and who employ others. In principle, there is scope for claims based on, say, fees differentials between men and women, unfairness in the distribution of work or type of work, the significant role of, say, “old boys networks” in obtaining work, the role also of professional bodies and business associations in encouraging or discouraging women members, etc. Should such claims arise, the ECJ and national courts would apply the now well developed principles of equal treatment law. As considered above, provisions regarding the burden of proof, whereby once a prima facie case of discrimination has been established the burden shifts to an employer to prove they had not discriminated against the claimant, has not produced much ECJ case-law. The hurdle for claimants remains that they have to establish the prima facie grounds for conduct is, for example, gender, rather than, say, poor performance.

Implications for HRM Within the UK, equal treatment laws are so well embedded, and, indeed, in some respects go far wider than EU law, that the implications are not that significant. The major impact has probably been in the areas of equal pay (see above) and maternity rights. The ECJ has, though, stressed, that women should not be overlooked for opportunities and development, even when away on leave. Therefore: •

Care should be taken not to exclude or withdraw job offers from pregnant women, even where the posts are of short duration, seasonal, etc., or to deliberately place obstacles to return from maternity leave through deleting posts, offering a downgraded post or selecting women on maternity leave first for redundancy.

•

Information systems should carefully record training needs and realities, especially for part-time posts and job sharing and as regards

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women on maternity and some other leave. None must be overlooked, nor assumptions made that they are not, for example, interested in management training or study leave. •

Women and men should have access to all roles and duties within the organisation and should not, for example, be excluded because they might be assumed to lack robustness in dealing with emotional and sensitive issues, or might not be prepared to do night work or what are generally perceived to be difficult shifts, or to be exposed to “bad language”, etc.

•

Access to a range of “benefits”, such as overtime, foreign travel and working from home, should not directly or indirectly treat men and women differently. This requires particular care as regards part-timers who are still predominately women.

•

In the light of research data indicating that women face major obstacles in achieving leadership or senior management positions in organisations (as well as higher pay), all career development practices need review to ensure they are not disadvantaging women. Is the organisational culture, its procedures, etc., giving out a message that applying for promotion is not “worthwhile” if you are a woman or that women do not “fit in”?

•

Decisions should not be made in an insensitive manner concerning requests or behaviour by a woman worker, especially one who has caring responsibilities. Many cases are lost, not least at the ECJ, because an employer behaved in an aggressive or off-hand way to a woman, despite there being good business reasons for a decision.

•

Care must be taken as regards the employment of self-employed persons, such as freelancers, along with casuals who are classified as “workers” even though they do not have employee status. Pay and benefits, access to opportunities, provision of status, etc., should not treat men and women differently.


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Chapter 5 Protection of other groups from discrimination Part A: Other protected groups Part B: Atypical/non-standard working Summary points


Chapter 5 Protection of other groups from discrimination

This chapter also contains much familiar material, though EU and UK law have developed at different speeds and sometimes in very different ways. EU legislation was prompted by Article 13 of the Treaty of Amsterdam which established a new legal base for extending equal treatment laws. It should be noted that Part A of this Chapter covers the protection of defined members of protected groups; Part B deals with the requirement for non-discrimination based on type of work pattern.

Part A: Other protected groups This part of the Chapter covers EU legislation and case-law on: •

Race and ethnicity (not colour)

•

Disability

•

Sexual orientation

•

Age

•

Religion and belief

UK law The key pieces of UK (home grown) legislation are:

56

•

Race Relations Act, 1976

•

Disability Discrimination Acts, 1995 and 2005

•

Equality Act, 2006

•

Sex Discrimination (Gender Reassignment) Regulations, 1999

•

Equality Act, 2010


5 P R O T E C T I O N O F O T H E R G R O U P S F R O M D I S C R I M I N AT I O N

It will be noted that some of the legislation is from a relatively early era (indeed, race discrimination laws date from 1968, though the major employment duties are in the 1976 Act). The following might be noted: •

The basic concepts of “direct” and “indirect discrimination” are long established in UK law; “harassment” similarly has a long history, though was originally part of direct discrimination rather than having a separate category.

•

Disability has always been treated differently by UK law. It provides for claims on the basis of direct discrimination, and only recently for indirect discrimination, and contains the unique notion of “reasonable adjustments” for disabled people. From the 2010 Act comes a new protection – equality discrimination ‘as a consequence’ of disability. It also has a “tight” definition of disability but also one that encompasses specified illnesses and recognises disability even though the individual’s condition is being successfully dealt with by drugs or other treatments.

•

UK law on race provides a wide definition, covering race, ethnicity, nationality and colour.

•

UK law has placed considerable emphasis on advisory and support bodies (the EOC, CRE, DRC – now all subsumed in the Equality and Human Rights Commission following the 2006 Equality Act).

•

UK law remains embedded in contractual rights and compensation based in the law of tort/delict; it does not claim to have a “dignity” or “human rights” basis.

•

There has been a significant recent move to “soft law”, in terms of requirements on public bodies to actively “promote” opportunity for perceived disadvantaged groups. In the Equality Act 2010, this now includes those disadvantaged by economic and social factors, as well as adding age, sexual orientation and religion or belief to the other established areas of law.

•

UK law has emerged strongly in defining and protecting disability and has important protections for those undergoing or undertaking gender re-assignment.

•

Claims under UK legislation are a marked feature of ET litigation, though, despite media interest and sometimes dramatic reportage, the success rate remains fairly low.

•

It might be noted that UK legislation protects people on grounds of marital status. This only includes married people or those who have a civil partnership.


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•

Case-law in the UK has been willing to impose “vicarious liability” on the employer, i.e. where the discrimination to a worker is caused by colleagues, members of the public, etc.

•

It has also been willing to award “aggravated damages” where conduct has been especially bad, in addition to the statutory right to compensation for “injury to feelings”.

As a consequence of EU legislation, we now have UK legislation on age, sexual orientation and religion or belief, much of which has given rise to contentious and often controversial case-law within the UK. •

Employment Equality (Sexual Orientation) Regulations, 2003

•

Employment Equality (Religion or Belief) Regulations, 2003

•

Employment Equality (Age) Regulations, 2006

The overall position is that employers, legal advisors, trade unions and others have long experience of dealing with discrimination claims. More recently, group actions have become a feature, soon to be legitimised through the Equality Act, 2010. Consequently, there is wide awareness of the demands of law, the negative publicity that a claim can give rise to and the need to have robust policies and practices in this area.

EU Law Although the EU recognised sex discrimination – at least in terms of unequal pay – from the outset, other areas of discrimination law took much time to emerge. Pressure mounted through, for example, claims by gay people and people who had undertaken gender reassignment under the sex discrimination legislation. Pressure grew in the 1990s to deal with these groups in an explicit way. The new legal base from the Treaty of Amsterdam allowed the two directives of 2000 to be adopted at the Lisbon Summit of that year. Therefore, the key pieces of EU legislation are: •

Equal Treatment Framework Directive, 2000 Dir /78

•

Racial Equality Directive, 2000 Dir/43

It might be noted that recent attempts to extend protections on grounds of age, sexual orientation, religion, etc. and disability into the sphere of the provision of a wide range of services is currently stalled. It might also be noted that before 2000 most member states did already have sex discrimination laws and often enshrined equality issues in their constitution or in other major pieces of legis-

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lation. They also sometimes covered other areas of disadvantage, such as family name, educational background, trade union membership, etc. The EU legislation provides for the outlawing of discrimination based on race and ethnicity, religion or belief, age, disability and sexual orientation, in terms of direct and indirect discrimination, harassment and victimisation. It might be noted that the provisions regarding age provided member states with some discretion as to circumstances where an age “bar” might be acceptable, i.e. it was for a legitimate aim (e.g. to ensure safety/ protection, provide opportunities for young people) and the response (the bar) was a proportionate response to that aim. These matters have proved very controversial and have led to interesting ECJ case-law. EU legislation does not provide definitions of, say, disability or sexual orientation and is in marked contrast with UK legislation that is very detailed and analytical. This generality of EU law provides considerable scope for arguments to be put before national courts and the ECJ, and the net result may be more restrictive definitions than in the UK. (For example, our definition of disability is wide and automatically includes some illnesses.) Article 6 of the Framework Directive does deal in a bit more detail with age. It explicitly allows for the setting of minimum and maximum ages for entry to an occupation, if justified. Article 76 1(b) provides for “the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment” (e.g. pensions). Interestingly, the Directive deals with entry to occupations and, for example, that a maximum age might be justifiable “based on the training requirements of the post in question or the need for a reasonable period of employment before retirement” (Art 6,1 (c)). Article 7 of the Directive explicitly provides for “Positive Action” to “prevent or compensate for disadvantages”, to “maintain or adopt provisions on the protection of health and safety at work” or for the “integration” of people into the work environment. Positive action is expressed very generally and is stated to be there for “ensuring full equality in practice” such that member states can adopt measures to achieve this. Article 11 deals explicitly with Victimisation to “protect employees against dismissal or other adverse treatment by the employer as a reaction to a complaint with the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment”.


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So, we have legislation with clear policy aims, covering the groups most generally thought to suffer disadvantage in the workplace. The policy aims are backed up with the right to take positive action and the duty not to victimise. However, what is noteworthy is what is not there. This includes definitions and, aside from age, little on justification/defences. The courts, therefore, have to rely on general legal principles, much drawn from sex discrimination law. It should be noted that a particularly high number of member states have had proceedings initiated against them for failure to transpose the 2000 Directives, especially regarding sexual orientation.

Case-law from the ECJ Taking each of the “grounds” in turn, we can see that the key case-law has been largely in the areas of disability and age, with relatively little case-law on sexual orientation, religion or, indeed, race. A) SEXUAL ORIENTATION

The key case-law has concerned mainly the question of access to occupational benefits and survivorship rights for the same-sex partner. The ECJ has confirmed that there should not be discrimination in comparison with rights etc. for heterosexual couples. In the case of Maruku (2008) C-267/06 a same-sex partner claimed widower’s rights in an occupational pension scheme where widows were able to claim. The 2000 Directive was relied on. It was relevant that under German law survivorship rights accrued for “life partners” as well as spouses so it was discriminatory to exclude same-sex “life partners”. B) RELIGION OR BELIEF

Although there has been much controversy in some member states regarding, for example, the wearing of the veil in France, there have been no significant cases before the ECJ to date on the 2000 Directive. We therefore have no decisions on the scope of the provisions and even though we have had many cases in the UK, there have been no referrals to the ECJ. Article 4 of the Directive provides justification where there is “genuine, legitimate and justified requirement” for persons of a particular religion or belief. This applies to churches and to organisations with a particular ethos and goes further than UK law in allowing limitations on those who can join or work in those organisations. Organisations

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can require such people to “act in good faith and with loyalty to the organisation’s ethos”. C) RACE AND ETHNICITY

There have been few cases in this area either but it is clear that glaring examples of direct discrimination have been confirmed as unlawful by the ECJ. Feryn (2008 C-54/07) was a Belgian referral that concerned a home improvements company. The work generally involved workers working in domestic premises. The company advertised that they did not employ any Moroccan workers. The ECJ held this to be clearly contrary to the 2000 Race Directive. D) AGE

It will be recalled that the 2000 Directive simply stated that age discrimination was unlawful though did explicitly identify a number of situations where age bars on entry to a job or occupation could be discriminatory. Any other bar or discriminatory treatment is therefore subject to justification. Article 6 defines a legitimate aim as, “including legitimate employment policy, labour market and vocational training objectives” and the “means of achieving that aim are appropriate and necessary”. Case-law has largely concerned enforced retirement rather than denial of entry to an occupation, though many important cases are currently under consideration, including the rules of professional bodies that deny or end membership once certain ages have been reached (or have not been reached!). The ECJ case of Palacios de Villa (2007 C-411/05) confirmed that the Directive does not bar member states from having age bars, in the case of the enforced retirement of a worker in Spain. Of course, from a UK perspective the Heyday (2009 C 388/07) case was important in that it was asserted that our Age Regulations contravened the Directive by explicitly providing that employers could require retirement at the age of 65. The ECJ restated the basic rules relating to justifying age discrimination but emphasised the need for convincing data to support the “legitimate aim” of employment policy etc. If arguments are based on high young persons’ unemployment and linked to active labour market policies, it is possible arguments will be successful. The UK rule is, of course, a blanket rule and not linked to the specific needs of particular occupations. The UK government elected in 2010 has signaled its intention to remove the default retirement age, despite the Heyday case.


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The ECJ in other cases has been reluctant to interfere in national legislation or practices. In Peterson (2009) Case-341/08 the ECJ held that it was justifiable in German law to require dentists (and doctors) to cease to practice at 68. The aims were expressed as reducing the high costs of staff in public health provision and increasing opportunities for younger health professionals. The acceptance of costs as a reason to possibly justify requiring retirement is an interesting development. At the entry level, the ECJ has also recently confirmed that an age bar of 30 for entry to the French fire service was justifiable (Wolf, 2009 C-229/08). The reasons that were accepted as justification by the ECJ included the need to provide a full career for entrants, the physical strength required – where the burden falls largely on young workers – and adequate payback for the investment in training. Again, ECJ case-law seems to confirm a more limited approach to equal treatment issues than we are familiar with in the UK. This means that we should have few problems with the Directives in the UK as employers or governments etc. What about other provisions impacting on older people? The case of Mangold (2007) C-144/04 has proved very controversial. German law places strict controls over the circumstances when a fixed term, as opposed to a permanent contract, can be offered. There must, in effect, be a genuine short term need. Employers, of course, often find fixed term contracts attractive, as they are easier to enter and terminate. There was policy development in Germany that permitted older people (55+) to be offered fixed term contracts in an effort to get employers to recruit older workers. To boost this policy, the German government reduced the age at which fixed term contracts could be offered to 52, clearly leaving more workers open to easy termination of their contracts. This was clearly discriminatory, but was justified by labour market policies geared to encouraging increased participation by older workers. The ECJ held that there will be circumstances where labour market policies – e.g. to deal with unemployment – constitute a legitimate aim. However, in this case the lowering of the age to 52 was not acceptable as employers could simply put all older workers onto such contracts. E) DISABILITY

As well as requiring equal treatment for those with a disability, the Directive also requires, through Article 5, “Reasonable accommodation for disabled persons”. The Directive specifically refers to training, unless the measures to enable a disabled person to participate “would place a disproportionate burden on the employer”. It will not be disproportionate if such measures are required by national law (as they are in the UK and there is no concession for, say, small firms).

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To date, case-law from both member states and the ECJ has applied a narrower definition of disability than ours in the UK. This has emphasised that a “disability” is not an ordinary illness whereby the individual can be expected to recover. This is a different approach to protections than in UK legislation, especially the 2005 amendments. (See Chacan-Navas 2006 C-13/05). The case of Coleman (2008 C-303/06) confirmed that it is not necessary for the claimant themselves to be disabled as long as disability was the basis of the alleged discriminatory conduct. In this case it was the claimant’s son who was dyslexic, and the refusal of the employer to allow some flexibility to deal with his needs constituted unlawful discrimination. This form of “associative” discrimination is now recognized in the UK’s Equality Act, 2010.

Implications for HR In terms of the major strands of discrimination law, so long as HR practitioners are familiar with the demands of UK law they should be compliant with EU law demands. It is unlikely that this will change in the near future. However, the following might usefully be noted: EU law emphasises the need to be able to clearly articulate a “legitimate aim” and a “proportionate” and reasonable response to it if an employer aims to justify discriminatory conduct. These aims must by carefully thought through and set down in terms of either wide labour market policy or organisational needs. It must be borne in mind that case-law from the ECJ is fairly recent and is not as “bedded down” as UK law. The wording of the legislation and the stated policy aims, as set out in the Preface, remain critical.

Part B: Atypical/non-standard working This section covers: •

Part-time work

•

Fixed term work

•

Temporary agency work

•

Homeworking/teleworking.

The reason such work patterns are covered here is that EU law has adopted an anti-discrimination and comparator approach derived from other anti-discrim-


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ination/equal treatment laws that are long-established in the EU. This process involves, say, comparing the treatment of a part-timer with an equivalent fulltimer. The full-timer has to be identified and the treatment carefully analysed, though the employer has the opportunity to justify any differences in treatment. For present purposes a “typical” or “standard” worker is an employee on a fulltime, permanent contract of employment. Another dimension of UK practice is the incidence of the use of complex business relationships in skills supply. Examples are limited companies/ personal service companies, umbrella companies and so-called vendor agreements with clients whereby there is a close relationship between a client and a skills supplier that not only provides staff but trains and inducts them, frequently on the client’s premises.

UK law It will be recalled that from the beginnings of UK employment legislation, the 1963 Contracts of Employment Act, some groups in the labour market were treated differently. In that Act, the right to a written statement of terms of work, notice period, etc. was only available to part-time employees if they worked at least 21 hours a week, and to fixed term or casual employees if they worked for at least three months. The self-employed were fully excluded. Therefore, until recently, atypical workers have been disadvantaged in terms of access to even basic protective rights. However, unlike in many European jurisdictions, there are no restrictions in UK law on the use of either part-time or fixed term work. In the case of the latter, the employer does not have to establish a particular short term need, though under the Employment Rights Act, 1996, a short term contract to cover maternity leave is subject to special rules. Interestingly, under Section 95 of the Employment Rights Act, the termination of a fixed term contract amounts to a dismissal and it will, in principle, be an unfair dismissal if the contract is not renewed on the same terms. The focus of UK law has, therefore, been the end of a fixed term contract, rather than its beginning. Traditionally, there have been no restrictions on the number of renewals of such contracts and in many occupations and sectors it has not been unusual for a series of fixed term contracts to be undertaken by an employee lasting a decade or more. In the same way, there has traditionally been no legislation providing specific protective rights to either part-time or fixed term employees or workers. However, given the high representation of women in part-time working, progress had been

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made in terms of, say, access to pensions, training and other benefits through the operation of equal pay and sex discrimination legislation (see Section A above). Agency working is distinctive, not just because of the unique “triangular” nature of the relationship but because although temporary work agencies and businesses (i.e. the latter supplying temps) have been increasingly tightly regulated under the Employment Agencies Act, 1973, and subsequent Regulations, there has been no UK regulation of the employment conditions of temps themselves. Their employment status has been determined by the agency, with a legal obligation to provide written evidence of the status that has been provided. Few agencies have provided employee status, so temps have been unable to assert job security or other protective rights, such as maternity rights. They can, of course, assert “workers” rights, such as non-discrimination, health and safety and the National Minimum Wage. Recently, claims have been made asserting an implied contract of employment against the agency’s client (for example, Franks v. Reuters (2003) IRLR 423); especially where the temp has been on a long assignment with the client and is integrated into their HR systems. However, with the decision in James v. Greenwich Council (2008 EWCA Civ 35) this is less likely to occur. Homeworking has never been treated as a special employment category in UK employment law. It has been left to contracts to deal with particular issues (insurance, security, working hours, sickness, etc.) but it has been assumed that all employment legislation applies to those who work at or from home. This includes health and safety. UK law treats homeworkers as ordinary employees/workers, with only job location as a distinctive feature. Hence, the normal rules relating to unfair dismissal, redundancy and protective rights apply. Overall, the traditional position of atypical employment in the UK has been a very mixed one. •

Homeworkers were not treated distinctively.

•

Only some part-timers were granted basic statutory rights.

•

Fixed term employment was unregulated, though the non-renewal was treated as a dismissal.

•

Casuals, including stand-by and zero-hours workers have typically had access to very few statutory rights, either because they were not classified as employees or did not have sufficient continuity of employment.

•

Agency temps were unregulated, though agencies tightly regulated.

•

Atypical working was re-enforced by the “right to request flexible working” under the Employment Act, 2002.


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EU law There has long been an atypical work policy agenda within the EU. Since 1983 there have been attempts to recognise their distinctive position, their problems in gaining access to statutory and contractual rights, (relative to typical/standard employees) and their general vulnerability in the labour market. However, it was not until the Framework Directive on Part-time Work, 1997, (Dir 97/81), negotiated by the social partners, that legislation was in place. We implemented this in the UK with the Part-time Workers (Prevention of Less Favourable Treatment) Regulations, 2000. The purpose of the Directive is to: a)

Provide for the removal of discrimination against part-time workers and to improve the quality of part-time work.

b)

Facilitate the development of part-time work on a voluntary basis, and to contribute to the flexible organisation of working time in a manner which takes into account the needs of the employers and workers.

The key provisions are: •

Part-time working is doing less hours that a full-timer.

•

Establishment of the principle of non-discrimination compared with a comparable full-time worker, in respect of employment conditions.

•

The full-time workers must be at the same “establishment”, having the same time of employment contract and engaged in the same or similar work or occupation.

•

The discrimination to be claimed must be solely because of part-time working.

•

If there is different treatment it can be justified on “objective grounds”.

•

Refusal to move from part-time to full-time or vice versa should not be a valid reason for termination of the contract.

•

Requests to move from full-time to part-time work and vice versa should be given consideration by employers and information on vacancies should be supplied by the employer.

•

Employers should give consideration to senior posts being undertaken on a part-time basis.

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It might be noted that the Directive is “tightly” drafted as regards who can benefit from the Directive but very broad in terms of its scope. The phrase “employment conditions” has no definition in the Directive but appears to cover both statutory and contractual rights. The Directive is also one of the earliest manifestations of the now well established principle of “flexicurity” that drives the European Employment Strategy and employment policy more generally (see Chapter 3). This means the law encourages flexible forms of working but provides appropriate security for workers.

Key case-law from the ECJ PART-TIME WORK

There is little to comment on here, as there have been so few cases on part-time work from the ECJ. The reason is that many of the substantive issues around discriminatory treatment of part-timers has been considered in relation to sex discrimination, including access to pensions, the basis upon which they can claim overtime etc. The case of Wippel (2004) C-313/02 concerned Austrian workers who had contracts that could involve intermittent working and variable hours, depending on the employer’s needs. The case provided an opportunity for consideration of the scope of the Directive. The ECJ confirmed that workers (not just employees) are covered, and that it could apply to part-timers despite the work being flexible and variable. They were entitled not to be discriminated against but insofar as state legislation set upper limits for working hours in the interests of health and safety, they equally applied to part-timers. What about access to and the basis of payment for overtime? This has been a contentious issue within the EU, especially on the question of whether the parttimer has to work the normal full-time hours before qualifying for any enhanced hourly payments. (The decision in 1984 in Helmig C-399/92 had suggested this requirement was not discriminatory.) The matter has been clarified by the cases of Elsner-Lakeberg (2004) C-285/02) and Voss (2008) C-300/6. Both cases concerned German teachers. In the first case full-timers did 24.5 hours a week and part-timers 15. Both had to do 3 hours unpaid overtime before qualifying for a payment. This disproportionately impacted on part-timers. In Voss full-timers did 26 hours a week and the part-timers up to 23. After a set number of hours any extra hours were paid but at a lower rate. In this case it was held that, proportionately, a full-timer has more hours at full pay before they hit the overtime rate that was lower.


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It should be noted that all of these cases in the ECJ were brought on the basis of equal pay/sex discrimination, not the 1997 Directive, and so there is little guidance as yet on the application of that Directive. Case-law in the UK has broadly reflected these Directives and has upheld the ability to claim by part-timers, even where there are some differences between the work done by full-timers and part-timers. FIXED TERM WORK

The non-discrimination principle was continued by the 1999 Fixed Term Work Framework Agreement, Dir 1999-70. However, this Directive is more complex, its adoption was highly controversial and there had been little case-law on fixed term work in the past. The concern of the trade union social partners during the negotiations of the Directive was to prevent abuse. This is in terms not only of typically poorer working conditions relative to a permanent worker, but also in the successive renewal of fixed term contracts, even where there was no objective need for them. The background to the Directive is instructive. Across most member states (but less so in the UK) termination of contract for conduct/performance or for “economic reasons” (redundancy) is often a lengthy and expensive process. During the 1980s and 1990s there had been considerable growth in the use of fixed term contracts and it was thought by many that the reason was the avoidance of job security legislation. In addition, in some states, long fixed term contracts were being used of, say, 3 or even 5 years length. Compared with the legislation on part-time work, that on fixed term work was not so much concerned with equal treatment but with regulating the use of such contracts. The difficulties inherent in gaining political agreement led to a Directive that is more flexible than most for those implementing it in member states. The aims of the Directive are: •

Improve the quality of fixed term work by ensuring the application of the principle of non-discrimination.

•

Establish a framework to prevent abuse arising from the use of successive fixed term employment contracts or relationships.

The main provisions are as follows: •

Fixed term workers are defined as persons having a direct employment contract or relationship where…the end…is determined by “objective conditions, such as reaching a specific date, completing a specific task

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or the occurrence of a specific event”. A permanent worker is one whose contract or relationship is of “indefinite length”. •

The requirement for non-discrimination in terms of work unless objectively justified.

•

Clause 5 deals with the issues of “abuse”. Member states have to put in place measures to prevent abuse and take at least one of the following: –

Establish that there must be objective reasons justifying the nonrenewal.

•

–

Set the maximum total duration of successive fixed term contracts.

–

Set a limit on the number of renewals.

Clause 6 provides for access to information and training, and places an obligation on the employer to inform fixed term workers about permanent vacancies at the organisation.

•

Agency temps and casuals are expressly excluded from the Directive.

It will be recognised that the UK government opted for a limit on the number of renewals of contracts in the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations, 2002. The Regulations appear compliant with the Directive’s demands.

Case law from the ECJ This, as in the case of part-time work, has been limited, although there has been a recent flurry of interesting and controversial cases. Cases have emphasised the general principles underpinning the Directive. In Del Cerro Alonso (2007) C-307/05 it was stated that “the equal treatment of fixed term and permanent workers is a principle of Community social law (which) cannot be interpreted restrictively”. The key issue of whether a non-renewal, with or without objectively justifiable reasons, infringes the Directive was considered in the case of: JIMENZ MELGAR (2001) C-438/99

A woman had been employed under a series of fixed term contracts. She became pregnant and at the end of the contract it was not renewed. It was held that this was not a dismissal for the purposes of maternity provisions in Spain, though it was sex discrimination. There was no answer from the ECJ as to whether such a non-renewal could be “abuse”.


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More recently, the case-law has been generated by cases from the public/civil services of a number of states, most notably Greece. Entry to such work is often through competition and/or very rigorous selection process. Employment conditions of “tenured” or “staff” employees are often better than those taken on for fixed term contracts to cover short term needs etc. ANGELIDAKI (2009) C-378/07

The Greek government sought to retain its public service processes whereby those on fixed term contracts could, in effect, claim conversion to a permanent public service role. However, those on fixed term contracts claimed that even where there was sustained need for work, contracts were, by law, not being renewed. This they said was abuse and recently their rights had reduced. This complaint was upheld and the case returned for consideration of whether having rules that precluded fixed term workers from permanent posts breached the Directive. The ECJ referred the case back to require Greek authorities to ensure that there were effective measures in Greece to prevent abuse of fixed term workers. The ECJ also reiterated that there is no right to permanent posts where the claimant is on their first contract!

Temporary Agency Work The final atypical/NSW Directive is the Temporary Agency Work Directive, 2008, Dir 2008/104. This was again a hard-fought measure but one that progressed through the EU in the “normal” way (see Chapter 2). Agency working is developed very unevenly across the EU, with the UK, France, Belgium and the Netherlands having significant numbers of agencies and temps but some member states having little experience of this type of working. Many resist agency working as undermining public employment services or being used to drive down working conditions. Others support it as providing flexibility, assisting in unemployment and leading to job creation. The Directive was adopted in October 2008 and builds on the legislative models of both the other atypical work Directives (i.e. on a non-discrimination model) and on legislation in many member states. This means that law would inevitably, in applying the non-discrimination principle, be a complex and possibly controversial measure.

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The main provisions are: •

Agency temps should be entitled to non-discriminatory treatment as regards core terms of work with a comparable worker at the agency’s client enterprise.

•

The employment relationship is with the agency (though the nature of it is not defined).

•

Where the temp has a permanent contract of employment with the agency, the non-discrimination provisions will not apply.

•

Temps must have access to social facilities at the client enterprise, such as canteens, transport and child care.

•

They are “counted” for information and consultation reasons and should be involved.

•

Temps should be informed of permanent vacancies at the client enterprise.

•

Obstacles to the legitimate development of agency working should be removed.

Again there is considerable emphasis on the elimination of “abuses” and it will be recalled that the UK negotiated a 12-week derogation from the anti-discrimination provisions. In May 2009, the UK government launched a Consultation and issued draft Regulations in October 2009. The Agency Work Regulations will come into effect in October 2011.

Tele/homeworking It might also be noted that the social partners have negotiated a Framework Agreement establishing good practice following the adoption of the Directive, and there is an Opinion on Teleworking. The Directive also emphasises the need to ensure comparable treatment for those that work at or from home, emphasising health and safety, social protections and the application of established EU employment law. For us in the UK, this is not a problem, as we already apply such rights to those who work at home.

Implications for HRM The implications of EU law have not proved dramatic. This comment includes the Temporary Agency Directive, as the UK government’s exclusion of temps that are self-employed, operate through their own company or who have not


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been on an assignment for 12 weeks will ensure only a minority of temps will have access to the non-discrimination rights. Despite there being little ECJ case-law, the non-discrimination principle is a strong one. It is vital that employing organisations: •

Have efficient internal communications and recording systems such that the organisation knows how many part-timers there are, how many are on fixed term contracts and when they are scheduled to end, and that they record the number and deployment of agency temps.

•

Must have clear policies on the use of fixed term and agency temps: Why are they used? Who makes decisions about their use? What is the role of HR in their use?

•

Know the extent to which part-time, fixed term workers have access to the full range of employee rights and benefits of full-time, permanent workers. If part-timers and fixed term employees do not have access to pensions, bonuses, training, etc. and are not included in consultation processes, why is this? Is there a cogent and compelling reason for their exclusion? Can it be clearly expressed?

•

What are the practices as regards the renewal of fixed term contracts? Might practices be seen as “abuse” of such workers? Is the organisation geared up for the conversion of a fixed term contract to a permanent one? If the organisation is not inclined to renew an FTC or convert one, are there objective justifications for not so doing? Are workers advised of permanent vacancies?

•

As regards the use of temps, how is this regulated within the organisation? Are managers aware of both current legal provisions and the new laws from the EU? What are current practices regarding access to “ social facilities” and is there a policy to select an agency that provides permanent contracts of employment for temps? What are the provisions for identifying the “going rate” for a comparator employee at the enterprise? Are they “counted” for consultation processes? Are you sure about their protection in terms of health and safety?

•

More generally, is there a need to develop a policy for the use of temps (or, indeed, atypical employment generally)? Has there been an assessment of the impact of the 2010 Regulations and should changes be made to current practices?

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Summary points •

Although UK law and practice considers part-time/job sharing, homeworking, etc. as part of our “flexible working” agenda, it is important to note that for EU law, the legal principles are based on antidiscrimination law (with all that entails).

•

The policy driver for EU law is prevention of abuse and protection of vulnerable workers, not encouraging of diversity/flexibility as such.

•

Each pattern of working has its own definitions and rules and is treated by law as having its own integrity, e.g. a part-timer is not a percentage of a full-timer.

•

The law does not require equality with, say, full-time permanent workers, but if treatment is different it will have to be justified.

•

ECJ case-law has been fairly robust in protecting the various groups (albeit often as part of sex discrimination) and this will likely continue as regards agency temps.


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Chapter 6 Family-friendly measures UK law EU legislation Case-law from the ECJ Implications for HRM Summary points


Chapter 6 Family-friendly measures

This Chapter is concerned with family related matters including: •

Maternity rights

•

Parental leave

•

Time off for domestic emergencies

UK law The key pieces of UK legislation are: •

Employment Protection Act, 1975 (as amended)

•

Employment Rights Act, 1996 (Care for dependents)

•

Maternity and Parental Leave Regulations, 1999

•

Employment Act, 2002

•

Paternity and Adoption Leave Regulations, 2002

•

Work and Families Act, 2006

UK legislation has made provision for maternity rights since the Employment Protection Act, 1975. Traditionally, the UK provisions have been fairly generous regarding leave from work, but less generous as regards pay. Maternity rights in the UK, by now largely influenced by EU law, are: •

A right to reasonable time off for antenatal care.

•

A period of maternity leave.

•

A right to return to work.

•

Maternity pay (a combination of state and employer payments for most women).

•

Protection from victimisation for exercising rights.

It should be noted that if a woman suffers a detriment for a pregnancy-related reason, UK law has for some recognised that she will likely also have a claim for sex discrimination.

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6 FA M I LY- F R I E N D LY M E A S U R E S

More recently, the law has become more flexible as to the notice to be given on return to work and the introduction of “keeping in touch days”. Other family rights had been very limited until the introduction of two weeks paternity leave in 2002, not paid by the employer but qualifying for, in effect, SSP, and more generous time off rights for adoption leave. There are current proposals to make maternity leave open to both parents and to extend paternity leave for fathers. It might be noted that “family/carer” rights derived from UK legislation are more extensive than those from the EU, especially in terms of: •

The right to request flexible working – soon to be extended to all employees.

•

Paternity rights.

•

Rights on the adoption of a child.

•

Rights concerning care of dependents.

EU legislation This has, to date, been confined to maternity, parental leave and rights where there are “domestic emergencies”. The Directive of 1992 on Maternity (Dir 1992/85) is actually a health and safety measure following the health and safety Framework Directive of 1989, though its requirements in practice went much wider. (It might be noted that legislative proposals based on health and safety were more likely to succeed, as from 1986 they could be adopted by qualified majority voting, i.e. no member state could veto proposals. See Chapter 2.) Its main provisions are: •

The need to assess potential risks that could prove especially harmful to a pregnant women or her unborn child or to a woman who has recently given birth.

•

Where a risk has been identified, protective measure should be taken, or the worker be redeployed and if these are not possible, she should be granted leave.

•

Prohibition of night work and redeployment to day work, or, if this is not possible, she should be granted leave.


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•

A minimum period of maternity leave of 14 weeks, 2 weeks of which are compulsory.

•

Protection from dismissal.

•

A right to time off for antenatal care, “without loss of pay”.

•

A right to maternity pay (an “adequate allowance”) paid at “at least” what she would receive if she was off work “connected with her state of health”.

Importantly, the Directive has two Annexes that specify the health and safety risks for pregnant women and for those who have recently given birth. These highlight particular risks posed by chemical, physical and biological agents. Such risks require the employer to respond, as set out above. The risks include heat, cold, vibration, rubella, mercury, carbon monoxide, lead and also cover specific risks such as that from working underground. In 2008, the European Commission issued a revised draft Directive (COM 2008/ 600/4) that aims to incorporate ECJ case-law, apply the Burden of Proof Directive to maternity cases, lengthen the entitlement to leave (18 weeks) and add other rights such as the right to request flexible working. At the time of writing, this draft is still under consideration. Legislation on Parental Leave, 1996 Dir 1996/34 was a long time in coming! Ideas for legislation date from 1983 when it was only for the care of very young children. In 1996 it was the first social partner agreement following the Maastricht Treaty, 1992, between the social partners (see Chapter 2). The Parental Leave Directive’s main provisions are: •

Male and female workers have individual entitlement to leave on the grounds of the birth or adoption of a child.

•

The leave is for 3 months minimum (soon to be increased to 4 months minimum).

•

The child can be aged up to 8 years, as defined by national law.

•

The right to return to the same or an equivalent job.

•

The maintenance of acquired rights.

•

Protection from dismissal.

The detailed rights under the Directive are up to member states, including the question of whether the leave is paid or not, whether it can be taken full or parttime, conditions applying to access, notice periods and whether leave can be

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postponed. The UK government made full use of this flexibility in its implementing Regulations (Parental Leave Regulations, 1999). In addition, the Directive introduced other rights. These are grouped under Clause 3, “Time off from work on grounds of force majeure”. This covers “urgent family reasons in cases of sickness or accident making the immediate presence of the worker indispensable”. More specific rights than these are derived from Ss57A and 57B, Employment Rights Act, 1996, that gives unpaid leave.

Case-law from the ECJ It might be noted that the backdrop to many of the cases decided by the ECJ is quite different to the UK. In most EU states, parental leave is paid, typically at a lower rate than maternity leave, is longer and is usually added on to the end of maternity leave. It should be noted that some of the cases considered below are also briefly discussed in Chapter 4.

1. Maternity rights The ECJ has been especially robust and interventionist regarding these rights. WEBB V. EMO AIR CARGO (1994) C-32/93

The ECJ confirmed in this case that if a pregnant woman suffers a detriment (in this case a woman was dismissed after being taken on a temporary replacement for a woman on maternity leave who also became pregnant) it is sex discrimination. There is no need for a comparator, such as man who needs time off for a major operation. Although the woman was initially recruited to cover leave, it was anticipated she would stay on after the leave. TELE DANMARK A/S (2001) C-109/00

This confirmed that even to dismiss or to refuse to employ a pregnant woman recruited to a fixed term post, whereby, due to the training needs and maternity leave, little work could actually be done, was nonetheless sex discrimination. DEKKER (1990) C-177/88

This case also concerns attempts at justifying refusals to employ a pregnant woman. In this case the argument was that the employer’s insurers would not fund sickness benefit if an employee was pregnant at time of recruitment. The


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ECJ strongly rejected this. If a woman is refused or dismissed from employment because she is pregnant, that is unlawful discrimination. JIMENEZ-MELGAR (2001) C-438/99

Similar approaches have been taken to the non-renewal of a fixed term contract when it was known that the employee was pregnant. Her fixed term contracts had been renewed in the past. The employer argued that there were other reasons than her pregnancy for the non renewal. The ECJ held that so long as the nonrenewal was pregnancy connected she had a claim. BUSCH (2003) C-320/01

A woman on parental leave who became pregnant wanted to end that leave early and return to work. She did not tell her employer she was pregnant. She was dismissed when the employer learned of the pregnancy. The ECJ held there was no extra obligation to inform the employer the reasons for ending the parental leave early (i.e. the pregnancy). There was unlawful discrimination. HANDELS V. DANSK (1989) C-109/88)

The ECJ confirmed that if a woman is on sick leave etc. connected with pregnancy after returning from maternity leave, the employer does not discriminate unlawfully if she is dismissed on capability grounds. This is so long as a man who had a comparable absence record would also have been dismissed. This is in line with other cases that have confirmed that the right not be discriminated against can only be claimed during the protected period, i.e. the statutory maternity leave period after the birth. MERINO GOMEZ (2004) C-342/01

It has long been accepted by law that to reduce the rights of a woman on maternity leave, fail to pay her pay rises, ignore her when promoting staff, etc. is unlawful. This case clarified another issue, that of holiday entitlement. It confirmed that the right to maternity leave and holiday leave are separate rights. Therefore, a woman must be able to take holiday leave outside the maternity leave period. PARQUAY (2007) C-460/06

A woman went on maternity leave. She had intended to return. Temporary cover was recruited and considered very competent by the employer. The cover was told that she could have a permanent post when the fixed term period ended. Parquay was not informed of the termination of her own contract until after the end of her leave. Despite being outside the legally protected period it was

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held that the “preparatory steps” to replace her had been taken during her leave and the conduct was unlawful. KIISKI (2008) C-116/06

A woman on parental leave became pregnant. She wanted to change her leave and status to that of maternity leave and not continue with the parental leave. There was financial advantage to her in taking maternity leave. The employer refused, saying that he had made arrangements that could not be altered just to accommodate her preferences. The ECJ held this to be unlawful discrimination as she was entitled to maternity rights and they could not be refused. For a recent overview of legal principles and case-law on maternity rights see Pontin (2009) C-63/08. Overall, the case-law takes a very strict interpretation of legislation, though interestingly, there have been no significant cases on health and safety protections. The decisions indicate the difficulties of denying direct sex discrimination or justifying indirect discrimination. A strong line has been held by the ECJ.

2. Parental leave Case-law here has been very limited. This is largely because most EU states have parental leave provisions that are wider than those provided for in the Directive. Only one major issue has emerged, and that concerns rights when an individual is on parental leave itself. MEERTS V. PROOST (2009) C-116/08

This is a case from Belgium, where legislation allows parental leave to be taken on a full-time or part-time basis. In this case leave was part-time. The claimant was dismissed while on parental leave and entitled to compensation. However, the legal issue was whether the rate of pay for compensation purposes was that of the previous full-time job or that on leave. It was held that it was the latter – i.e. the individual changes their contract terms when taking leave and must then suffer the consequences. This is broadly in line with similar UK case-law on parttime working following full-time employment. GOMEZ-LIMON (2009) C- 537/07

Parental leave was taken on a part-time basis. Pay and social security payments were adjusted accordingly. The woman became disabled when on parental leave. She was entitled to a pension. However, it was based on her reduced pay and


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social security payments. The ECJ held this to be lawful and not contrary to the Directive and also not to be sex discrimination. Clearly, there are risks for individuals when taking leave or otherwise taking advantage of the Directive. This appears to be in contrast to the generally highly supportive attitude taken to the occupational benefits etc. of those on maternity leave. This may be a reflection of the fact that parental leave is open to both men and women?

Implications for HRM Maternity rights are well established in UK law and much of the ECJ caselaw will be familiar to practitioners. It is generally clear and provides strong guidance. Some of the key implications for employers are: •

Maternity law is a part of sex discrimination law, though there is no need for a male comparator as pregnancy is uniquely female. The refusal to employ, promote, reward equivalently or select first in a redundancy situation is difficult to defend.

•

Arguments that it will be “too expensive” to employ a pregnant woman, “too inconvenient”, “not worth while” because the post is time limited etc. have fallen on deaf ears. Even arguments that it would be “too risky” on health and safety grounds are unlikely to succeed. The legislation is clear as to what has to be done if there are risks to the woman or her unborn child.

•

The ECJ has been especially robust when examining the treatment of a woman on leave. She must be treated for virtually all intents and purposes as still being at work, e.g. informed of vacancies, promotions and key work events, and not be denied pay rises, most bonuses where they are automatic – or at least paid proportionately where they are based on performance and she was at work some of the time – and not have benefits withdrawn (e.g. the company car, phone, etc.).

•

The ECJ has provided less guidance on some of the more detailed issues, e.g. if leave is one year or more, how, precisely, does the employer provide holiday leave within a “holiday year”. Can leave be carried over or “bought out”? To date, the ECJ has been equally robust in

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ensuring that there are no impediments to individuals taking leave in the holiday year, with severe restrictions on carrying holidays over. Caution must be taken in this area and no assumptions made that the law will be flexible. •

Many of the uncertainties regarding parental leave have yet to be resolved by the ECJ but again great care should be taken to not cause detriments in any way through taking leave, especially in treating men differently from women. It appears that there is greater reluctance to accede to flexible working requests from men than women and there are always the possibility of sex discrimination claims arising out of attitudes and practices regarding parental leave.

•

Where employing organisations have written policies on maternity and parental leave as well as adoption leave, ensure they reflect the most recent ECJ decisions and ensure that revised Directives will be a part of these documents when the proposed EU legislation is adopted.

Summary points •

The maternity agenda and consequent rights are well established in EU law and most of the practical issues have been adjudicated on by the ECJ.

•

The legislation in this area still leaves many key issues to national legislation, including the length of leave (beyond the minimum) and rate of pay. However, the EU and ECJ case-law has prescribed a formidable list of practices that fall foul of the law and amount to unlawful discrimination.

•

Although the EU has developed some areas of family friendly rights it might be observed that the UK has in many respects moved well beyond the EU agenda, especially in terms of recognition of civil partnerships, transsexuals and paternity rights. This makes EU law generally more easy to absorb.


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Chapter 7 Freedom of movement The UK situation EU legislation The legislation itself Case-law from the ECJ Implications for HRM Summary points


Chapter 7 Freedom of movement

This is one of the most important areas of EU law impacting on employment practices and one that is subject to considerable controversy. It will be recalled from Chapters 1 and 3 that at the heart of the EU agenda are the Four Freedoms – of capital, goods, services and people. The last two are of considerable significance for employers, workers and clients of employing organisations. Essentially, the EU is one market for the provision of skills and it follows that people have to be free to work in any member state. Organisations must also be free to provide skills across borders. This may be through an agency, outsourcing, secondment or other mechanism. At the same time, the EU is committed to competition as a means of improving the efficiency of employing organisations and providing benefits to consumers and others in the EU. Considerable EU legislation is required to support these policies and the key aspects are set out below. The topics covered are: •

Freedom of movement for workers

•

Freedom of establishment for firms and professionals

•

Mutual recognition of qualifications

•

Freedom to provide services cross border

•

Posting of workers cross-border

The UK situation Traditionally, the UK labour market has been a very open market to people from outside the UK. In part, this has been due to links through the Commonwealth, but also to the lack of restrictions on who can perform particular work and the lack of collective agreements and other systems to protect workers. Few jobs are reserved for UK nationals and generally recruiters in the UK have long been used to receiving applications from overseas, with organisations such as the British Council providing advice, facilities and information on non-UK qualifications.

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7 FREEDOM OF MOVEMENT

This lack of restrictions has led to many occupations and sectors being heavily reliant on foreign labour. The position has generally been one of openness, flexibility and little or no legislation or practices that protect UK workers from competition. However, in recent years, immigration controls regarding non-EU nationals have grown considerably under various pieces of legislation, most recently through the introduction of the Points Based System, the five Tiers of migration categories and the increasing regulation of the recruitment process by the Home Office and Borders Agency. Similarly, increased control over students and those in the UK on work experience has developed. Of course, this legislation cannot operate against EU citizens or those from the European Economic Area (EEA). These are nationals from Norway, Switzerland and Lichtenstein. The greatest impact has been on Third Country Nationals and those who are unskilled or less skilled. There is, therefore, a great contrast between the freedom enjoyed by EEA nationals and by those from beyond the EEA.

EU legislation This is a mixture of “hard” and “soft” law and the legislation has spawned a wide range of institutions, policies and practices. This is indicative of the fact that an open, integrated labour market is at the heart of the philosophy of the EU, backed up by long standing programmes, such as Erasmus, Erasmus Enterprise from 2009, Leonardo and Grotius, and practices such as the introduction of the Blue Card for migrants and the Europass for EU job applicants, especially across member states. The Lisbon Treaty, 2009, has consolidated most of these provisions. The major pieces of legislation are: •

Art 20 of TEU-free movement of workers and their families

•

Art 20, that provides for free movement of self employed people and their families

•

Art 20-freedom to provide services

•

Council Directive 2004/48 on citizens’ rights, students and retired persons (the economically inactive)

•

Directives affecting various professions such as in medicine, law and architecture


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•

Regulation 1612/68 on freedom of movement and recognition of qualifications (now superseded)

•

Directive 2005/36 on recognition of academic and vocational/craft qualifications (a consolidating measure)

•

Posting of Workers Directive 1996/71

The legislation itself As mentioned above, the “freedoms” of EU law, i.e. the removal of obstacles to people investing, selling, working, living, etc. in another member state, are fundamental to the EU agenda. Clearly, the obstacles can relate to tax, social security, administrative, etc. matters. This chapter will only focus on matters relevant to recruitment and employment. The rights are based on the notion of EU citizenship, a notion that is of growing importance, especially since the Lisbon Treaty has now become a reality. Articles 20 of the TEU established the basic principles. The main ones are the right to work in a member state other than your own and not to be discriminated against in connection with your nationality. There is also coverage outside the EU where aspects of employment are governed by law of one of the member states. The need to remove obstacles was confirmed by the notorious case of Bosman (1995) C-416/93. This concerned barriers to the freedom of movement of professional footballers and the outcome of the case was to open up possible challenges to all rules and practices that protect “home” workers or exclude (directly or indirectly) non-nationals. The rules apply to “workers”. However, the worker must be carrying out services for and under the direction of another person. This means that the genuinely self-employed, such as consultants, casuals, contractors, etc., are excluded but are covered by other legislative provisions. Practices such as requiring advanced qualifications in language skills where the job is in manual work or requires little contact with people; requiring a period of residence before applications are received; testing the knowledge of customs and practices of your state; and giving priority to job applicants who have links with existing staff in the organisation etc., will likely deter applications and may be considered contrary to Art 20. Legislation and collective agreements, as well as recruitment practices, can be declared null and void if they contravene Art 20 and the possibilities for justification are limited.

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The public service is in theory exempt, though Art 20 requires the exemption to be interpreted restrictively, i.e. the limiting of work to “home” nationals should be restricted to sensitive areas, such as security, military and senior public service posts. It is also unlawful to fail to recognise periods spent in the public service of other state when recruiting, rewarding staff, etc. (Commission v. Greece 1998 C-187/96) It should be noted that the freedom of movement rights only apply to EU/EEA citizens, and the fact that an individual from a non EEA state has worked within the EEA does not entitle them to rely on Art 20 when applying for work in another state. So, a Nigerian national who has worked in Italy and who wants to work in the UK does not have Art 20 rights. It should also be noted that with the consolidating measure of 2005, recruiters have the responsibility to check out the qualifications of a non-national job applicant and not put the onus on the applicant. EU law has long recognised that one of the key barriers to mobility is the failure to accept non-nationals with qualifications not obtained from the “recruiting” state. For some professions, mainly medical ones, Directives set down the specific requirement for mutual recognition of qualifications. At an earlier stage of development, legislation was modelled on anti-discrimination; i.e. there was access to employment in principle but excluding a non-national applicant could be capable of justification. More recently, the emphasis has been on a right to move freely (Commission v. Denmark (2005) C-464/02). States are free to regulate access to trades and professions in any way they choose, in the interests of consumer protection. However, it has been clearly decided that the operation of the professional and other rules for qualification must not be operated in a discriminatory manner. The EU provides lists of both academic and vocational/professional qualifications and this indicates equivalence. Recruiters need to be aware of these lists and the rejection of someone not having, for example, a UK engineering or mechanics qualification is risky. It is important to recognise not just qualifications but also professional experience gained outside the “recruiter’s” state. It should be noted, however, that where a profession is a “regulated” profession (i.e. the state lays down requirements), for example, in the UK, for social workers, school teachers, doctors and lawyers, it can be lawful to require a nonUK nationally qualified person to also undertake an aptitude test or period of adaptation. This is recognised as a sensible safeguard and ensures professionals are aware of the work systems and cultural factors. These provisions also apply to professional service providers intending to operate outside their own state.


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At present, there is no harmonised system of qualifications, though with the Bologna Process in higher education, the process is moving on apace, with growing equivalence in degree structures, credit ratings of study programmes and agreed distinctions between under-graduate and post-graduate programmes.

Case-law from the ECJ These combine enforcement actions taken by the European Commission and individual claims by job seekers etc. EUROPEAN COMMISSION V. SPAIN (2008) C-39/07

Spain was held to be in default through its national health service’s failure to recognise the three year Diplomas of hospital pharmacists obtained in other member states. The same state was held to be in default through requiring all air traffic controllers to be Spanish nationals. (2008 C-136/07) LEUKEN (2008) C-197/06

This is an amusing case involving a Dutch estate agent who was qualified under Dutch law. He wanted to set up in business just across the border into Belgium, specialising in selling Belgian properties to Dutch clients. He was refused a right to practice and the action was triggered by a Belgian organisation representing estate agents. He was told that in order to practice he would have to take nine examinations in legal subjects (even though Belgians were not required to do all the subjects!). He won his case and the Belgian organisation was fined 3,700 euros for each breach of EU law. PESLA (2009) C-345/08

A Polish national was refused employment as a trainee in Germany. He was told he needed to take a test in all compulsory legal subjects for the state first examination. The Polish applicant had a degree in law from Poland and Frankfurt University, and a two year Bachelor degree in German and Polish Law. The ECJ stated that EU law does not require acceptance of lower skills and experience, but that there should be some flexibility. The legal requirement is for “equivalence” not for identical content etc. of qualifications. If there is a shortfall, then that is the part to be tested. It is unlawful to impose on an individual a requirement that they pass everything or reach a particularly high standard, if “home” applicants are not required to.

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Individuals rejected by employers because they do not have the preferred qualification or are the “wrong” nationality have been the subject of a few notorious cases. The ECJ has held it unlawful: •

For part time tutors in Italian universities etc. having to be Italian.

•

For the Ecole de Ski in France to only employ French nationals.

•

For snowboarding trainers only to be French nationals.

Other individual claims have been more complicated. KHATZITHANSIS (2008) C-151/07

K applied for a job as an optician in Greece. He had trained in Italy at the Vinci Institute for Optical Studies. A Diploma, to be recognised, has to be awarded by “competent authorities” in a member state. Here it was argued that he had not obtained his qualification from a competent body, as Greek higher education is governed exclusively by public law that does not recognise private colleges (independent study centres). However, the Vinci Institute (a private college) operated under a franchise from a Greek recognised college. The qualification was equivalent and the ECJ held that he had a right to have his qualification recognised, disregarding the fact that had he studied in a private college in Greece he would not be qualified. RUBINO (2009) C-586/08

An Italian national who had studied in Germany sought employment in an Italian University. The universities in Italy had developed a List of approved lecturers. He was told he needed to be on the List and applied. He was rejected. The ECJ held that freedom of movement provisions had not been infringed. University teaching (as in the UK) is not a regulated profession and employers have considerable discretion as to how and who they recruit. The List was only one of the pieces of information they would use. This brief consideration of case-law illustrates that although the policy aims of an open employment market are clear, the delivery has still some way to go. It remains hard to predict the outcome of claims, with the ECJ still holding to a view that employers in member states are best placed to judge who is appropriate for a particular job. Rather obvious protectionist practices, such as a blanket rule to preserve jobs for home nationals when there appears little objective reason, have been successfully challenged and the legal rules on the regulated professions have been broadly upheld.


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THE POSTED WORKERS DIRECTIVE 1996 DIR 1996/71

This rather quiet and rarely discussed Directive has come into recent prominence and may well be subject to reform in 2010. The aim of the Directive is to ensure that those temporarily working in another member state (host state), having been sent (Posted) by their employer based in their home state should not be discriminated against. Posted workers are entitled to: •

Equal treatment protection.

•

Health and safety protection, including entitlements to paid holidays.

•

Entitlements under host employment laws, including the national minimum wage if there is one.

These protections were designed to encourage movement of people and to aid integration. However, the growth in cross-border agency work, outsourcing and successful tendering, especially for construction work, has thrown this Directive into recent prominence. This has been because in a number of high profile cases, workers from lower wage economies have been posted to higher wage economies to undertake work. As would be expected, trade unions and many politicians have reacted strongly to these practices, arguing that high labour standards are being undercut. The events in Lincolnshire in the summer of 2009 when Italian workers were brought in to do building work on an oil refinery triggered the “British Jobs for British Workers” campaign. Cases have ended up in the ECJ, perhaps the most famous being: LAVAL (2007) C-341/05

A Latvian company was contracted to undertake building work in Sweden, using Latvian workers. Collective agreements set pay and other conditions in Sweden, but the Latvian workers did not have them applied to them. Their pay and other conditions were lower. The Swedish unions argued this was in breach of the Directive; the Latvian company argued that to interfere with the terms of employment was uncompetitive. (The Swedish unions had blockaded the work site, preventing access.) The Latvians won. Had the pay rates etc. been set by law, the situation would have been different. The implications of this decision for UK employers are fairly simple. It is necessary to apply to posted workers any legislative requirements, such as paid holidays, maternity rights, security of earnings, but purely contractual matters can be left to agreement.

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Implications for HRM •

The freedom of movement provisions are relatively simple in their objectives but detailed in their practical application. If recruiting or receiving posted workers from other EU states, it is necessary to be aware of the detailed provisions.

•

The treatment of other EU nationals must be non-discriminatory, even in matters such as how they are selected (in theory, if travel expenses are paid to UK nationals, they should be to non-nationals; if an assessment centre is used it should be used for non-nationals as well).

•

It is important to check recent developments through the Cedefop and Eures websites and the European Commission (see Sources).

•

It might be important to note some significant differences in practice as between the UK and other member states. For example, first degrees are generally longer and more broadly based than in the UK. Therefore applicants for first jobs tend to be older. Many states still require military service, so this too might make them older for first jobs. Some have requirements for military reserve service, and this needs to be respected.

On the whole, though, this is not a problem area for HRM!

Summary points •

The EU has developed a complex and evolving series of measures to encourage movement of workers between states, and the removal or restriction of barriers to their so doing.

•

In reality, movement has not been that significant, though UK nationals have been amongst the most mobile, including through the Posting provisions.

•

Looking forward, there will likely be further harmonisation measures regarding qualifications and possible reform of the Posting of Workers Directive.


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Chapter 8 Health and safety at work Traditional UK position EU health and safety law The key Directives Case-law from the ECJ Implications for HRM Summary points


Chapter 8 Health and safety at work

This is the area of employment law and practice that has been most affected by EU law. Over forty major Directives, which have a distinctive and different approach to the UK’s traditional one, have changed the way we think about and practice health, wellbeing and safety matters at work. As there is virtually no recent “home grown” legislation, our law in this area is dominated by EU approaches.

Traditional UK position Health and safety legislation has long been a part of our criminal law, dating from the first decade of the nineteenth century. The key rules of the law are not only drawn from health and safety legislation but from several other areas of law, including: •

The law of negligence that provides “victims” of accidents and ill health with compensation if caused by work activities.

•

The law of “breach of statutory duty” that provides for compensation for harm caused by the specific breach of health and safety legislation. This is the most common “health and safety” cause of action in the UK

•

The contract of employment’s two implied terms. The first is to require all employers to protect workers from workplace risks; the second to provide trust and support, especially regards health and safety concerns.

•

Other legislation, such as the Protection from Harassment Act, 1997, the provisions in the Employment Rights Act, 1996, protecting those who stop work when faced with danger, and the Public Interest Disclosure Act, 1998, that protects genuine “whistleblowers”.

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8 H E A LT H A N D S A F E T Y AT W O R K

UK health and safety legislation had a number of features, now substantially changed by EU law. These included: •

Legislation was targeted at specific industries or types of people. Examples of the former include manufacturing, mining, construction and railway premises. Examples of the latter include legislation to protect women and children at work.

•

Application of a legal standard that required employers to take steps, “so far as reasonably practicable”, to protect people. This standard is flexible and can reflect employment circumstances but it is difficult to enforce.

•

Implementation of the recommendation of the Committee chaired by Lord Robens that reported in 1973 and which led to the Health and Safety at Work etc. Act, 1974. This aimed to reduce accidents and ill health through the shared responsibility for safety of all at work but gave a key role to trade unions for safety monitoring. The 1974 Act continues to provide the administrative, policy and enforcement framework and defines the key duties of all at work.

By 1974 (when we were already an EU member state) the UK had a complex though uneven legislative framework that focussed mainly on safety issues in dangerous employment sectors and activities. However, in 1988 we introduced the Control of Substances Hazardous to Health Regulations, (COSHH) to implement a Directive on Hazardous Agents, 1980, from the EU. This signalled a major change.

EU health and safety law In the 1980s a small team, working in EU offices Luxembourg, put together a new and radical approach to work and workplace risks. The strategy was unveiled in the 1989 Framework Directive on Health and Safety (1989 Dir 1989/391). The Framework Directive was quickly followed by several other Directives, introduced into the UK in 1992 as the so-called “Six Pack” set of Regulations. This comprised: •

Work Premises

•

Work Equipment

•

Personal Protective Equipment


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•

Display Screen Equipment

•

Manual Handling

•

Safety Management

The Directives are predicated on a number of relatively simple and consistently applied principles. These include: •

That workplace and other risks are created by hazards. Hazards include explosives, chemicals, corrosives, noise, diseases, heat and cold, dangerous work equipment such as sawing machines and dangerous activities such as working at height or with vibrating machinery. Hazards can also include other people who are, for example, violent or bullies, or who create a stressful work environment.

•

The legal duties of employers are to: –

Assess how severe risks are.

–

Record the outcome of the risk assessment.

–

Pay particular attention to those who may be at particular risk, such as pregnant women and young and new workers.

–

Put in place effective preventive measures that have as their aim the elimination of risks, but if this is not possible to reduce risk to its lowest possible level.

–

Monitor risks by re-doing assessments when changes occur and at regular intervals and by using information sources such as health and safety committees, suggestion schemes, employee development interviews to check on overall health and safety standards.

– •

Review practices on an on-going basis.

The effect of this strategy is to apply a common and consistent approach to all workplaces and work activities driven by the core notion of risk management. This requires proactivity as regards hazards and risks (not waiting for a “near miss” before acting) and for the employer to provide adequate resources and named personnel for the safety management tasks.

However, there were some controversial aspects to the EU “package”. The first arose in 1993 with the inclusion of working time as a health and safety matter. The UK government argued before the ECJ that regulating working hours was

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not truly a health and safety matter at all (Case 84/94). The case was lost. Controversy continued to rage, this time spearheaded by other member states angered by the UK “48 hour opt-out”, enabling UK workers to personally agree to work beyond the normal weekly limit of 48 hours. The attempted amendment of the 2003 Directive foundered in 2008, again mainly over the opt-out. The second controversy was over the standard of care expected of employers. As has been referred to above, the UK’s was of “reasonable practicability”. The EU’s legislation applied the usual civil law standard of “strict liability”. This imposes liability for a breach of legislation whether or not, for example, reasonable care/inspection/maintenance/supervision has been undertaken. The language of a Directive is to “ensure”, to “provide”, to “maintain in efficient working order”, and phrases such as the employer “shall ensure that (a DSE user) is provided with adequate health and safety training” are illustrative. To paraphrase the UK’s approach, the equivalent would have said something like “The employer, so far as is reasonably practicable, shall take reasonable steps to ensure adequate training”. In 2005 the European Commission commenced proceedings in the ECJ, arguing that the “reasonable practicability” test was inadequate. The UK had retained this approach in some, though not all, Regulations to implement the EU Directives. The case was lost. It should nonetheless be noted that several of our key Regulations do anyway apply strict liability. The Work Equipment Regulations and Personal Protective Equipment Regulations broadly apply the “strict” test.

The key Directives •

Hazardous Agents Directive, 1980/1107

•

Health and Safety (Workplace Directive 1989/654)

•

Noise Directive 1986/188 See also Directive 2006/25

•

Chemical Agents Directive 1998/24

•

Biological Agents Directive 1990/679

•

Framework Directive 1989/391

•

Work Equipment Directive 1989/655 (last amended 2007/30)

•

Personal Protective Equipment Directive 1989/656 (last amended 2007/30)


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•

Display Screen Equipment Directive 1990/270

•

Manual Handling Directive 1990/269 (last revised 2007/30)

•

Asbestos Directive 1983/477 and 1991/382

•

Safety Signs Directive 1992/58

•

Maternity Directive 1992/85

•

Working Time Directive 1993/104

•

Atypical Work Directive 1991/383

•

Young Workers Directive 1994/33

The list illustrates the principle of EU health and safety law that the “greater the risk the greater the protection”, in that vulnerable people are singled out for their “own” Directive! In recent years there has been little “new” legislation. Mostly it has been a case of reviewing and amending existing Directives. An interesting example of this process occurred recently. The Commission wanted to revise the regulation of working hours of commercial vehicle drivers. It proposed that the new measures would differentiate between employee drivers and owner (self-employed) drivers. When debated by the European Parliament the measure was voted down. The MEPs stated that tired drivers, whether employees or not, were capable of causing death on the roads and the new regulated hours should apply to all! This response by the Parliament, whereby it looks more broadly and perhaps differently at legislative proposals, may be a foretaste of the future of EU employment law-making, following the coming into force of the Lisbon Treaty in December 2009. In 1995, following the Commission’s Fourth Action programme on Safety Hygene and Health at Work (COM(95) 282), the European Agency for Safety and Health was set up in Bilbao, Spain. Two things flowed from this. First, there was a separation of health and safety policy development from the Commission. Some say that this has led to a loss of momentum and a downgrading of health and safety issues. Second, there has been a move away from “hard law” measures, such as Directives, towards “soft law” measures such as Recommendations and other persuasive techniques. An example of “soft law” is the Recommendation on Stress at Work, which adopts a much broader approach to that of the Management Standards on Stress in the UK produced by the Health and Safety Executive.

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Case-law from the ECJ Other than the major decisions on the 1993 Working Time Directive, most of the interventions by the ECJ have resulted from allegations that member states have failed or have failed to fully implement directives. An example of these types of cases is: COMMISSION V. ITALY (2001) C-49/00

Here it was successfully alleged that Italian legislation had failed to require employers to provide for and support designated and qualified employees with health and safety responsibilities. COMMISSION V. GERMANY(2002) C-5/00

This concerned the failure of German legislation to require written risk assessments for all employees. COMMISSION V. UNITED KINGDOM (2007) C-127/05

This has been previously referred to and concerned the adequacy or otherwise of the UK’s “reasonable practicability” standard. The decision that it was adequate leaves the UK with “mixed standards”, i.e. some aspects of legislation require strict liability and others, reasonable practicability. This means practitioners need to check legislation very carefully. It might be added that the UK’s record of implementation is a very good one – it has tended to be speedy and comprehensive. WORKING TIME CASE-LAW

Case-law has focussed on only a few – albeit highly contentious – issues. They are the nature and workings of the 48 hour opt-out, the definition of working time itself and provision for paid holidays. PFEIFFER (2004) C-397/01

This confirmed that the only way for an individual to opt-out is through individual and freely given consent. Collective or workforce agreements are not adequate, nor is an agreement as a result of undue pressure. SIMAP (2000) C-303/98

This was the first of the “on-call/standby” cases. It concerned hospital health workers. The ECJ had to consider the definition of “working time” itself. The


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Directive speaks of “time spent at the employer’s disposal”. In SIMAP the decision was that as the staff concerned had to remain at the hospital premises they were working when they were on-call. Subsequent cases have provided wider definitions. JAEGER (2003) C-151/02

Another case involving hospital workers found that they were “working” when at the hospital and on-call but also when not at the hospital but having to be “available to the employer”. Other cases have confirmed that not only is being on-call working time, even when the staff are allowed to sleep, but that time must be paid at the full rate, not, say, at the level of a minimum wage. As regards paid holidays, the ECJ has been equally robust. FEDERATIE NEDERLANDSE VAKBEWGIG (2006) C-124/05

This case confirmed that pay in lieu of untaken holidays is not permitted, so to avoid contravention of the Directive employers should ensure leave is taken. The case also limited the ability of employers to “carry over” leave from one year to the next. The law is not entirely clear but it is best to be cautious and aim to have everyone take their leave within the holiday year. ROBINSON-STEELE (2006) C-131/04

This case dealt with the thorny question of “rolled-up” holiday pay into ordinary pay. The employer argued that as the pay contained an “extra” element it would enable the workers to take breaks from work. The ECJ disagreed. In reality, in not providing paid holidays as a separate item, the rolling up deters people from taking holidays and was contrary to the Directive. BECTU (2001) C-173/99

This was a challenge to the UK government’s 1998 Regulations that required 13 weeks continuous working before a right to a holiday accrued. The union that brought the case operated within the media industry where intermittent and short-term contracts were endemic. The ECJ accepted that the rule would disbar many UK workers from paid holidays and held the rule to be unlawful. The case therefore implied that weeks could be added together, albeit with breaks and when 13 weeks was reached a week’s paid holiday accrued.

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A further important issue is currently before the ECJ. This covers the amount of holiday ‘pay’. Does it include allowances, eg for subsistence as well as basic and enhanced pay? It might be noted that it is likely that during 2010 a further attempt will be made to amend the 1993 Directive. The failed attempt in 2008 had aimed to increase the flexibility of the Directive and to deal with the thorny question of pay for standby/on-call work. The stumbling block to change has always been the 48 hour “opt-out”. There may be a way in which that issue can be “de-coupled” from the other non-contentious reforms but we shall have to see. It might also be noted that many aspects of the Directive have anyway proved uncontroversial, such as the regulation of night work and occupational health support for night workers.

Implications for HRM The EU health and safety agenda is especially coherent, consistent and robust. It provides a clear way to view workforce and workplace issues and its risk management approach can be applied to all types of risk. The key employer duties of risk assessment, prevention and monitoring can be applied to the full range of workplace problems, including violence, stress and health problems more generally. Helpfully, the EU strategy also emphasises that all at work have legal obligations. Workers, too, have obligations to not only co-operate and comply with health and safety duties and procedures but also a duty to inform management if there are ”shortfalls” in their health and safety systems. These are important and “HRM compatible” obligations that can be re-enforced through the contract of employment and policy documents. It is, of course, appreciated that how important the EU health and safety agenda is to HRM in a particular employing organisation will depend on the extent to which HRM has responsibility for it or whether it is jointly or exclusively undertaken by a separate occupational safety and health function. Nonetheless, whatever the situation, given the increasing importance of worker health, wellbeing and safety issues, it is important that the nature and approach of EU law is taken on board and appreciated.

Some of the key implications for HRM are: •

EU law requires effective and proactive risk management throughout the organisation and for all types of workers, and all work activities, including overseas work.


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•

Health and safety concerns must always be responded to through a coherent and transparent procedure, confirming in the UK the implied obligations from the contract of employment.

•

The need to appreciate the implications of strict liability is a serious one. Much of the key UK legislation uses the strict liability test. Stark v Post Office (2003) is a well established case in point. The claimant was a postal delivery worker who was injured when his bike collapsed under him. The bike was 12 years old but had been regularly checked and maintained. The cause of the collapse appeared to be metal fatigue which would likely not have been detected by even the most rigorous examination. The bike was held to be “work equipment”, was covered by UK Regulations to implement an EU Directive and was subject to “strict” liability in terms of being provided with safe work equipment. It was not and compensation had to be paid. Employers need to be aware of the demands of law here, so quality assurance processes need to be especially rigorous.

•

The need to ensure that the especially “at risk” groups, including pregnant women, people with disabilities (such as hearing or sight impairment), the young, trainees and intermittent and other workers are covered by effective risk assessments. These assessments must be reviewed when circumstances change. Research indicates that many employers are not updating or responding to risk assessments. Such failures, for example, in relation to pregnancy and disability will likely also amount to unlawful discrimination.

•

Grievance procedures must, if they do not do so already, accommodate health and safety concerns. If employees are fobbed off, for example, where their complaint relates to violence, harassment or bullying, they may rightfully “blow the whistle”.

•

Internal communication systems, if they do not already do so, should mainstream health and safety concerns. Health and safety, along with wellness issues should not be “hived off” or isolated, as the EU sees a holistic approach as a key to successful risk management.

•

Appropriate and engaging health and safety awareness and training should take place, not just as a compliance matter but through an attempt to really engage with the issues and to explore the nature and level of risks affecting individuals and groups. It is inadequate just to do training following an incident or accident. The training methods and their timing need careful consideration (is induction day really the

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best time?) and non-standard workers including the self-employed need to be a part of it. EU law covers workers working at home, on another’s premises and when they are travelling – matter which may require liaison and training with other organisations. •

The EU law places special emphasis on “co-operation and coordination” where workplaces are shared, where several employers are engaged in a project and when staff are supplied through an intermediary employer, including an outsourcing company. The EU recognises that these situations are often high risk as it is left unclear who is responsible for what and when hazardous activities will take place, such as demolition, re-wiring, etc. Legislation covering agency working has also emphasised the need for effective communication and liaison between the client and the agency. It is vital that HRM and Occupational Health specialists are a part of this process of effective co-operation and co-ordination.

•

Make sure all documentation relating to health and safety is up to date. Nothing is more damaging that an H&S inspector finding a document still in use dated “1975”!

Summary points •

This is one of the most coherent and settled areas of EU employment law, though uncertainties remain over working time.

•

It unlikely that there will be many major changes to the legal structure and in any event UK legislation is generally sound and advice freely available.

•

HRM needs to be aware of the key rules and approach from the EU, even though the organisation has specialist support.

•

It is possible that the health agenda more generally will have increasing impact, health and safety law will move ever closer to EU consumer law and that aspects of public health and the law itself will become more interventionist.


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Chapter 9 Making business changes UK traditional approaches to change EU legislation Case law from the ECJ Acquired rights/transfer of undertakings ECJ case-law Implications for HRM Summary points


Chapter 9 Making business changes

This has been, at times, one of the most fast moving and contentious aspects of EU law. The law has evolved during various recessions, periods of restructuring and development and more recently as a response to increasing global challenges to employment in the EU. This has been typified by the relocation of many jobs to lower wage/labour costs economies and through the off-shoring of many business services. Within the EU, the accession in 2004 of several former Communist states has put some pressure on well paid jobs and on the traditional European Social Model, which is based on stable, well managed jobs providing security and good rewards. The need for the EU to be productive and competitive has inevitably led to the review of some practices and previous certainties. Industries, such as mining, shipbuilding and much of agriculture, have declined, with a current emphasis on knowledge industries, the service sectors, high quality products and, increasingly, for workers to be flexible and adaptable. The European Employment Strategy (EES – see Chapter 3) has aimed to remove obstacles to job creation, sought high labour market participation, efficiency and competitiveness and introduced measures to encourage the sharing of best practice through the Open Method of Co-ordination. All these changes have put considerable strain on the law-making process itself. Some policy makers call for fewer regulations, more flexibility and less traditional employment protections, especially for job security. They point to the success of the so-called Golden Triangle in Denmark, which makes changes and job losses relatively easy for employers. The state then provides generous social security payments to those who have lost their jobs which can be forfeited if the worker does not take up the retraining packages designed to get them back into (different) work. Other policy makers see the removal of legal protections for workers, especially those that are anyway vulnerable, as leading to a “race to the bottom”, with an increasing percentage of the workforce trapped in low skill, low paid jobs or unemployment. They highlight the very high levels of both youth (

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