What would UK employment law look like if Britain had not joined the EU?
The question occurred to me when I saw a Tweet from Hugo Rifkind during last night’s ‘in or out’ debate between Nigel Farage and Nick Clegg. Here’s our exchange:
I do wish somebody, just once, would actually name one of these laws which come from Brussels that apparently matter so much. #europedebate
— Hugo Rifkind (@hugorifkind) April 2, 2014
@hugorifkind employment lawyers could name a few for you
— Darren Newman (@DazNewman) April 2, 2014
@DazNewman I bet they could name precious few that we wouldn’t have passed here, anyway.
— Hugo Rifkind (@hugorifkind) April 2, 2014
Well there’s a thought. How much of the UK’s employment law that is based in some way on an EU Directive would have happened anyway? How much of a difference does it really make?
There is a fair point here. The Equality Act 2010 is ‘based’ on the Equal Treatment and Race directives but there is no doubt that the UK would have developed its own discrimination laws even if the EU were not a factor. The Equal pay Act 1970 and the Sex Discrimination Act 1975 were not passed primarily to comply with European law (discuss!) and of course the Race Relations Act 1976 and the Disability Discrimination Act 1995 extended discrimination law to those areas with no EU underpinning at all. Sexual orientation, age and religion were certainly added as a result of a Directive, but surely the Government of the day would have legislated in those areas even if we had not been EU members?
Without the EU we would still have had extensive health and safety laws and Harold Wilson would certainly have introduced consultation rights for trade unions without the Collective Redundancies Directive. The Contracts of Employment Act 1963 introduced a right to a written statement of terms long before the Proof of Employment Relationship Directive (that’s a fun one) and of course we had maternity leave (of a sort) before the Pregnant Workers Directive came along.
TUPE, on the other hand, would almost certainly not have happened at all. The Acquired Rights Directive was agreed by a Labour Government but it fell to a new Conservative Government to implement it – and they only did so through clenched teeth. In 1998 Labour was quite comfortable with the Working Time Directive, but surely needed the cover of a directive to implement it while keeping the CBI onside. As for the other social chapter directives implemented once Labour opted us back in to social Europe I very much doubt any of them would have made it into UK law without a legal obligation to implement them. The fact is that European works councils, part-time work, fixed-term contracts and parental leave just wouldn’t have been on any Government’s list of priorities.
We can also say for certain that the Agency Workers Regulations would not have been adopted without a Directive and nor would the Information and Consultation of Employees Regulations (though no-one cares about them). In both cases the Government opposed the relevant directives for years and only gave in when a deal was struck.
There are probably examples that I have missed. But listing laws like this misses the point. You can’t weigh up the influence of Europe by counting the number of laws. Farage and Clegg got into a completely futile argument about ‘what percentage’ of our laws originate from the EU. Who cares? What matters is what proportion of our activities are regulated in a different way because of Europe.
Any UK employment lawyer knows that our law is different because of our membership of the European Union. A crucial part of this is the case law of the European Court of Justice. Even in areas where UK legislation would have happened anyway, our law is different because of the decisions of the ECJ. Without the ECJ:
- there would be a cap on compensation in discrimination claims
- TUPE would not apply to contracting out exercises
- only recognised trade unions would be consulted over collective redundancies
- employers would be entitled to treat pregnant employees the same as those who were off sick
A full list of examples could fill a text book. In fact, several are available.
The inescapable fact is that a decision to leave the EU would have a massive impact on employment law. For some, of course, that is very much the point. UKIP is now painting itself as the friend of ordinary working people. But if UKIP had it’s way, how many of the EU derived rights that are now an integral part of our employment-law system would remain?