If it weren’t for the EU…

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:

 


 

 

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?

About Darren Newman

Employment law consultant, trainer, writer and anorak
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6 Responses to If it weren’t for the EU…

  1. pussinska says:

    “what iffery” is a lucrative market 75% of which relates to Hitler winning; but in commenting here I will declare some interests.
    I was made redundant at 50 in the same circumstances as Mr de Belin; and I’m a paid up member of UKIP. The one directly led to the other.
    However, perhaps:-
    The “Big Society” might have worked without TUPE, as community groups might have been willing to express an interest in providing services using volunteers……
    Small firms and start ups would be less reluctant to employ if they could have retained the exemption from equality n’ diversity they used to enjoy ( five or fewer). Nor can an agency worker be the answer to a shortish term need any more. Plus, they may have very good reasons based on attendance, to want to get rid of a mother. Both before and after the birth.
    Public bodies wouldn’t be teetering on the edge of bankruptcy because of backdated equal pay; and nor would they have the expensive nightmare of continuing to manage discrimination claimants since they can’t just write out a severance cheque.
    Nor do competency based procedures aimed at defending such claims get you the most suitable person for the job…………

    • John Anzani says:

      So if it were not for TUPE employees could be laid off so that unpaid volunteers could take their place? Further that if it were not for existing Europe UK would have permitted this?
      As for the ostensible exemption for orgnaisations with less than 5 staff I admit that I was not aware that this had existed. What piece of legisdlation or order in Parliament abolished that?
      The points regarding dismissing a mother, equal pay claims and “discrimination claimants” are I think shown to be false by the discussion in the article itself.

      • From memory, the five employees or fewer exception related only to maternity leave. It was abolished when the Pregnant Workers Directive came into force. There lasso used to be a small employer exception for disability discrimination originally set at 15 employees and then reduced to 10. That was abolished when the Equal Treatment Framework Directive came in.

        I don’t think there was ever a small employer exception for either race or sex discrimination.

  2. John Anzani says:

    Thanks for that and apologies for lack of proof reading in the previous post

  3. David W Southall says:

    Of course workplace rights mean nothing (whether from EU, ECJ or Statute) if access to them is restricted by ability to pay tribunal fees.

  4. Bernie Watson says:

    …..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?….

    Not so sure Darren, all are emotive to considerable numbers both for and against. Age may have sneaked in, caused by the usual major driving factor of money v an ageing population, but I am not so very sure sexual orientation would have been with us anything like as long as it has-, and as to religion, as the only discriminatory head a bearer can choose to not be part of by application of free will, would have had an equally rough ride.

    I do recall in the early 90s a distraught John Major stating he was previously unaware that certain social elements were due to visit us when they had already been in student textbooks for some years as a health and safety sign up to the directive. (The Working Time Regulations!!)
    One only has to look at; those regulations slow development (the notion of four weeks in the directive being interpreted originally as including bank holidays for instance), the agency workers dragging on, (then being watered down and drafted in a way so as leave unenvisaged loopholes) and the general drive at present to derive employees of basic rights by draconian initial costs together with the use of the new form of settlement agreement which despite its huge accompanying ACAS guide ( largely ignored) is already being abused (and leaves non- signing employees in an invidious position). All taken together this may be ‘Beecroft by the back door’ . Not that it will help business (least not the good ones). The coach and horses that this drives through the idea of Tribunals may take us back to pre-1978 industrial times, as if there is nowhere else to go, then its ‘all out!’

    And as for fees- I note that the consultation was not actually that. (A choice between two fees levels is hardly consultation about their actual introduction) together with the manipulation of inappropriate legislation (and at that only part of it) so as to apply to a tribunal not envisaged as being included under it to give legal basis must be worth a challenge- any administrative lawyers –any thoughts out there?…

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