The Myth of Gold-Plating

Gold-plating is such a clever term – I wish I’d thought of it. In the employment law context it refers to over-implementing EU rules so that the UK law is more burdensome than it needs to be. When a set of Regulations goes further than required by the Directive then we can say that the Directive has been ‘gold-plated’.

The phrase is used by people who want employment law to be as limited as possible. The beauty and elegance of the term is that instead of sounding like 19th century mill-owners, they can be the voice of common sense. Gold plating conjures images of pointless indulgence – of useless decoration. Regulations are supposed to be sensible functional things. Gold-plating them is just silly and we should stop doing it.

There are some fundamental problems with this approach however. Those who identify gold-plating are acting on the assumption that they know what the EU law actually requires. Take this article in the Daily Telegraph,, for example which quotes as an ‘obvious’ example of gold-plating the scope of the Agency Workers Regulations:

An obvious example of so-called “goldplating” involves an EU law that came into effect in 2011, giving temporary workers the same rights as permanent staff.

At the time, the EU directive stated that temps must be given statutory pay and holiday, but UK civil servants decided to increase the right to equal pay and holiday.

Regular readers of this blog will not be surprised to learn that the truth is a little more complicated than that. The provision of the EU directive being referred to here is this one, from Article 3(1):

(f) “basic working and employment conditions” means working and employment conditions laid down by legislation, regulations, administrative provisions, collective agreements and/or other binding general provisions in force in the user undertaking relating to:

(i) the duration of working time, overtime, breaks, rest periods, night work, holidays and public holidays;
(ii) pay.

To assume that this provision limits the Directive to statutory pay and holiday is to assume that you know precisely what the phrase ‘binding general provisions in force in the user undertaking’ means and can be absolutely certain that it does not extend to contractual terms that are ordinarily applied to employees. But that sort of assumption would be silly. I can’t predict exactly how the ECJ would interpret that provision but to claim that the Regulations contain gold-plating you have to assume that the court would adopt the most restrictive meaning possible. How likely is that?

Had the Government taken the advice of the IoD and limited the Regulations to statutory requirements, then the law would be in chaos. No-one would be able to get straightforward legal advice until the ECJ had ruled on the issue – and that would be likely to take years.

But of course no-one would listen to lobbyists who argued that we should always assume the most restrictive possible interpretation of EU law and just keep asking the European Court of Justice for a ruling whenever an issue arose. It makes sense to implement EU law with some sort of safety margin so that business knows where it stands and we can have some hope that the EU directive has been properly implemented. But of course no-one would argue that we should remove all safety margins from our legislation. Call it ‘gold-plating’, however, and we can claim that its completely unnecessary.

Having said that, actually finding gold-plating is more difficult than some lobbyists make out. I honestly struggle to think of areas of EU law relating to employment where we go clearly and unequivocally beyond what is required.

But there is one really good example.

Take this provision from the pregnant workers directive (Article 8(1))

Member States shall take the necessary measures to ensure that workers within the meaning of Article 2 are entitled to a continuous period of maternity leave of a least 14 weeks allocated before and/or after confinement in accordance with national legislation and/or practice. (my emphasis)

In the UK we give employees 52 weeks’ leave. Now if that isn’t gold-plating I don’t know what is. If Michael Fallon at the Department for Business is opposed in principle to gold-plating then he should be calling for maternity leave entitlement to be slashed. Why isn’t he?

Because the ‘gold-plating’ argument is one you only rely on when you are opposed to the law in question. It’s a lobbyist technique, not a genuine principle for legislation and deep down the Government knows that.

In the current climate we are unlikely to want to implement new employment rights that aren’t required by EU law. But if the Government decides that that is what it wants to do (like shared parental leave for example), it won’t let the fact that that is gold-plating get in the way.

About Darren Newman

Employment law consultant, trainer, writer and anorak
This entry was posted in EU law and tagged , , , , . Bookmark the permalink.

2 Responses to The Myth of Gold-Plating

  1. Andrew Eldred says:

    Hi Darren

    You might know this already, but I think that Peter Schofield of the EEF has the honour of having dreamt up the term gold-plating, in connection with what (several years later) became the 2006 TUPE Regulations. I was sitting in the same meeting with him at the CBI at the time and recall the CBI staffers (who had previously backed extending the Regs) squirming.

    Peter might tell you I am wrong about this, but I thought I should let you know, just in case you ever sit down and write your history of UK employment law.

    I hope all is well with you and Mary.

    Cheers

    A.

  2. Gosh! It would be great if I could claim to have made even this dubious mark on the history of employment regulation. I am sure, however, that you will be deluged with others claiming the “distinction”. I remain of the view, I have to say, that the 2006 Regulations were an obvious example of gold plating brought about by an unholy alliance of unions and large public sector contractors who did not want to be left with redundancy liabilities when the music stopped. They did of course keep the TUPE case law down for a while, so it wasn’t all bad (he now admits).

    However, I absolutely agree with Darren that most so-called gold-plating should actually be welcomed by employers as bringing more certainty to vague EU legislation which otherwise would require expensive (and too often fruitless) litigation to try to resolve. Would you rather a fixed redudancy consultation period or face endless arguments about whether you started “in good time”? In my days as a lobbyist, I was more often critical of government for not being bold enough to resolve uncertainty in EU directives. By not doing so, they are actually transferring the risk of getting it wrong from government to employers.

    Keep up the good work, Darren.

    Peter Schofield (formerly of EEF, now of Ellis Whittam)

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