We really didn’t.

It seems that David Cameron is going to insist on reclaiming the UK’s opt out from employment law as part of his renegotiation of the terms of Britain’s membership. It’s not clear whether the claims are genuine or are simply an attempt by the anti-EU faction in the Conservative Party to ‘bounce’ him into proposing more radical reform than he can possibly achieve, but the story has led to a lot of press and media discussion about the Working Time Directive and the ‘opt-out’ of EU social policy that the UK enjoyed before Tony Blair came to power.

There is a tremendous amount of confusion about what the ‘opt-out’ secured by John Major in negotiating the Maastricht Treaty actually did. In fact its scope was always limited and did not have a huge impact on the way in which Europe influenced UK employment law.

In the Maastricht Treaty back in 1992, 11 of the 12 members states wanted to extend the competence of the EU to legislate in areas of social policy by qualified majority voting. When the UK made it clear that we would not sign up to that they added a protocol on social policy to the Treaty which allowed them to use EU institutions to pass and enforce legislation that would not apply to the UK.

That arrangement came to an end when the newly elected Labour Government agreed to be sign up to the protocol on social policy which was subsequently subsumed back into the main body of the Treaty. The Directives that had been agreed under the Maastricht protocol were then extended to the UK.

As far as I can tell, there were  just four of them:

• The Part Time Workers Directive
• The Burden of Proof Directive
• The Parental leave Directive
• The European Works Councils Directive

I think its fair to say that adopting these directives did not radically change the employment law landscape in the UK. That is because most of the ‘big’ employment law areas of the UK were already agreed – unanimously- under previous Treaty provisions. Directives dealing with Equal pay, Pregnancy, Transfer of Undertakings, health and safety, and collective redundancies continued to apply to the UK throughout the period of the so-called ‘opt-out’.

Importantly, the Working Time Directive was not agreed under the ‘opt-out’ provisions. The UK was always covered by it.

What about the Working Time Directive?

One of the reasons Conservatives are so passionate about the Working Time Directive is that they feel tricked. In the Single European Act of 1986, the Thatcher Government agreed a massive extension of qualified majority voting – reducing the number of areas over which any one member state could exercise a veto. One area covered by QMV was health and safety. The Government must have felt that we had very little to fear in this area since in the UK we had extensive and detailed health and safety laws – what harm could it do to allow other member states to catch up a bit?

So when the Working Time Directive – capping the number of hours workers could work, regulating night-work, legislating for rest breaks and paid annual leave –  was proposed as a Directive on health and safety there was outrage. This wasn’t, surely a genuine health and safety measure; it was social policy legislation. The limit on working hours in particular was not really about protecting workers from harm but about the theory that if you limited the amount of work one person was allowed to do then employers would have to hire more people and unemployment would fall.

Although the UK ultimately abstained rather than vote against the Directive, it then launched a legal challenge in the European Court of Justice arguing that the Directive was unlawful because it sis not genuinely concern health and safety. That legal challenge was rejected in November 1996 and it was clear that the Government would have to implement it – although the Conservative party manifesto for the May 1997 General Election insisted that they would not. Ultimately it fell to the Labour Government to introduce the Working Time Regulations 1998.

The Directive always applied to the UK – we were never opted out of it because it was passed under the procedures agreed by the Thatcher Government.

Confusion often arises because there is a provision in the Directive – very much the UK’s doing – which allows members states (not just the UK) to provide for workers to agree to work more than 48 hours a week. That provision is still there (Article 22) and is reflected in Regulation 4 of the Working Time Regulations. So individuals can ‘opt-out’ of the limit on working time. They cannot ‘opt-out’ of any of the other provisions in the Regulations and there is no sense in which we have ever had an opt-out from the Working Time Directive itself.

Nor will we ever get one. It is simply inconceivable that the other 27 member states will agree to allow the UK to enjoy the competitive advantage of lower social protection while remaining in the single market. Any relaxation in the rules would have to apply across all of the member states  and would represent a fundamental shift in the nature of the EU. Perhaps it could happen one day, but the chances of David Cameron obtaining the agreement of all member states in time for the UK’s referendum in 2017 are roughly zero.

If we stay in the EU we will have to accept that some – though by no means all – of our employment laws will be governed in part by European law. That’s the deal. Let’s just get this referendum over with and then we can perhaps move on.