What impact has membership of the EU had on UK employment rights?

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1 TSSA Staff Reps Bulletin Ref: INT/011/Mar 2016 What impact has membership of the EU had on UK employment rights? Introduction As we approach the EU Referendum due to take place on Thursday 23 rd June 2016, TSSA is presenting the second in a series of Reps Bulletins that are designed to educate members about what issues are at stake when they decide how they intend to vote. In this Bulletin we will be referencing a TUC publication, UK employment rights and the EU: Assessment of the impact of membership of the European Union on employment rights in the UK i and in which we will see just how much workers in the EU have benefitted from membership, even when the UK government has been pursuing a path of cutting employment rights and shackling trade unions with ever more burdensome regulations. Our message is that without EU membership, the current majority Conservative Government would be able to decimate employment rights to achieve their desired American style hire and fire culture. When you look at the full TUC document you will see just how many of the rights that we take for granted have come about because of the EU s Social Chapter and the ability of trade unions to campaign with European colleagues to ensure important gains are made for workers across the continent. We will be elaborating on how the EU makes law in another Bulletin but it is worth knowing at this stage that when a Directive is adopted by the EU, eg, the Working Time Directive, each of the members states are required to implement it in their national law. When this doesn t happen, or elements are omitted, as has occurred in Britain on several occasions in connection with worker protections (eg, the Working Time Directive, Equal Pay legislation, TUPE rights), legal action can be taken by the European Commission through the European Court of Justice (ECJ) forcing the member state to comply. So, what employment rights have we secured from Europe? There are a range of rights that have been secured and these have been broken down by the TUC report as follows: General rights Working parents and carers Equality Outsourcing and public procurement

2 Collective rights (including Health and Safety) Cross-cutting impacts of EU membership for UK employment rights - during the working day, an uninterrupted 20 minute rest break after 6 hours of work - a statutory right to 28 days paid annual leave. What are general rights? ii There are two specific areas here: Written statements of terms and conditions In the UK, employees do not have a right to a written contract of employment but under the EU Written Statement Directive iii, employees must be given a written statement setting out their pay and working conditions within 28 days of starting work. This is to improve their protection by providing them with sufficient information on their rights whilst giving greater transparency on the labour market and contributing to legal certainty for both employees and employers, as well as helping to reduce undeclared work. Working Time Implemented in the UK in 1998 as the Working Time Regulations, the EU Directive introduced measures including: - a maximum 48-hour working week (normally averaged over 17 weeks) - a daily rest period of 11 consecutive hours - a weekly rest period of 24 consecutive hours Legal cases brought under the Directive have led the European Court of Justice (ECJ) to award additional rights: - workers who fall ill during a previously scheduled period of leave have the right to reschedule that leave; - calculation of holiday pay extended to include commission payments and compulsory overtime Working parents and carers iv Amongst the areas covered here are: Maternity leave The EU Pregnant Workers Directive 1992 v led to substantial improvements in the health and safety protections for expectant and new mothers in the workplace, including: - giving women paid time off for ante-natal appointments - placing a duty on employers to carry out a risk assessment and to adjust working conditions. Case law resulting from legal actions before the ECJ has led to a number of improvements including that of treating a women unfavourably because of pregnancy or maternity leave being regarded as direct

3 sex discrimination (now defined as unfavourable treatment because of pregnancy or maternity leave by the UK s Equality Act 2010) Parental leave rights As a result of the Parental Leave Directive vi, working parents have the right to: - take 18 weeks unpaid leave from work to look after a child up to age 5 (since increased to 18 in the UK). - take time off work for urgent family reasons (eg, sick child). The EU is also looking at the potential for a raft of additional measures that would benefit UK workers. that many trade union supported landmark equal value cases have been won, lifting the pay of thousands of women. - The ECJ established that paying part-timers who are mainly women a lower hourly rate than full-timers was indirect sex discrimination, as was excluding them from an occupational pension scheme Anti-discrimination rights UK legislation related to sex and race discrimination was in place in the 1970s and only after a lot of campaigning did the Conservative Government enact the Disability Discrimination Act Equality There are a number of important aspects in this area including: Equal Pay The right to equal pay for equal work between men and women is a fundamental right enshrined in the EU Treaty which is directly enforceable in UK courts. Taken with the Equal Pay Directive it has led to: - Enforcement action against the UK government by the European Commission in 1983 because the UK s Equal Pay Act 1970 omitted an equal pay for work of equal value clause. EU Regulations were introduced and implemented in member states with the result However, the EU Framework Equal Treatment Directive in 2000 introduced legislation on discrimination on the grounds of age, religion or belief and sexual orientation whilst an ECJ ruling led to discrimination on the basis of gender reassignment being seen as a form of sex discrimination. Other EU legal developments have: - changed the burden of proof requirements making it easier to bring claims - widened the scope of challenging discriminatory practices through amending definitions of direct and indirect discrimination

4 - introduced a requirement that there must be no upper limit for compensation in discrimination cases, which recognises the severity of the harm caused by such treatment (and prevented the Conservative led Coalition Government introducing restrictions proposed by the Beecroft report in 2011). Outsourcing and public procurement Members may be familiar with the item that is listed in this area but the TUC document also covers lesser known subjects: TUPE protections Aimed at ameliorating the detrimental effects of outsourcing when transferring to a new employer, the Transfers of Undertakings (Protection of Employment) Regulations 2006 contain important protections for outsourced workers and those affected by business buy-outs. While the regulations were somewhat weakened in 2013 by the Conservative Government, the EU legislative framework meant they cannot be repealed. Collective rights (including Health and Safety) vii Collective bargaining In the past, the EU has encouraged collective bargaining negotiations between employers and trade unions to determine pay and working conditions. Collective bargaining generally results in better outcomes and a stronger voice for workers and has led to trade unions and employers playing an important role in negotiating new EU employment standards. In many countries EU standards are implemented using collective agreements. In recent years, however, collective bargaining systems have been placed under pressure within the EU following the adoption of more negative policies by the European Commission working with the European Central Bank (ECB) and the International Monetary Fund (IMF) (the three organisations together are known as the Troika). These developments have also been mirrored in some ECJ rulings which have limited the ability of unions to organise industrial action in cross-border disputes and to negotiate improvements in pay and conditions. As the TUC document notes, Despite recent pressures, collective bargaining remains a central feature of the European industrial relations framework and a primary means of setting terms and conditions and of narrowing pay inequalities for millions of workers. By remaining in the EU, UK unions

5 would retain the ability to participate in and shape negotiations at an EU level, including through sector-wide bodies. viii Rights to information and consultation The Acquired Rights Directive ix (which originally led to the TUPE legislation in the UK) and the Collective Redundancies Directive x both recognise that active consultation between the social partners benefit management, employees and the wider economy by ensuring that restructuring takes place in way that is more socially acceptable, avoids disputes and leads to less damaging effects on local and regional economies. These Directives now form an important cornerstone within the UK industrial relations framework. Unions rely on these rights during redundancy and outsourcing exercises. Effective consultation arrangements yield genuine benefits for union members and the wider workforce. As part of its fitness check exercise, in 2013, the European Commission carried out an evaluation of these Directives, and the Information and Consultation Directive. At the time, the employers and trade unions agreed that the measures should be retained and the Commission initially accepted this perspective in July However, later in the same year the Commission changed its position and announced that it was proposing to consolidate the three Directives, launching a first phase social partner consultation in April 2015 aimed at revising or recasting the three Directives. Employers and trade unions have expressed concerns at this approach and called for information and consultation rights to be retained. No further information is available at this stage. Health and safety Health and Safety in the UK is built upon the 1974 Act xi which has both underpinned and been extended and modified by EU legislation, principally in the form of the Health and Safety Framework Directive xii which establishes broad-based obligations for employers to evaluate, avoid and reduce workplace risks. xiii Amongst the changes has been the Health and Safety (Consultation with Employees) Regulations 1996 which arose from the threat of infraction proceedings against the Conservative Government of the day, as did the extension of coverage of health and safety legislation to the police.

6 A whole range of other directives, implemented through national regulations, cover the management of specific workplace risks including: - musculoskeletal disorders - noise - work at height - asbestos The TUC says 41 of the 65 new health and safety regulations introduced between 1997 and 2009 originated in the EU. As the TUC note, Numerous reviews over the years have concluded that the EU regulatory framework has been a positive vehicle for health and safety standards. Attempts by the current Conservative Government to reduce health and safety provisions under the guise of lifting red tape have been severely limited by what they could propose because of the minimum standards that the European legislative framework provides. In addition, unions and others have used complaints to the European Commission, or threats to seek infraction proceedings to gain changes in UK legislation. Cross-cutting impacts of EU membership for UK employment rights xiv EU membership has also brought: access for UK citizens to the European Court of Justice (ECJ) which has played a pivotal role in improving the employment rights and conditions of working people in the UK; increased the value of compensation that UK workers are able to claim for employment law breaches; provided a formal role for social partners (trade unions and employers) in the formulation of policy provisions that are mostly absent in the UK Acknowledgements and further information This Bulletin was prepared using the TUC publication UK employment rights and the EU: Assessment of the impact of membership of the European Union on employment rights in the UK. i Available at: employment%20rights%20and%20the%20eu_0.pd f ii See Page 5 of TUC publication iii EU Directive 91/533/EEC iv Page 5-7 of TUC publication v Directive 92/85/EEC vi Directive 2010/18/EU vii Pages of TUC document viii Pages 12, TUC publication ix Directive 77/187/EC modified in 1998 and then replaced in 2001 by Directive 2001/23/EC x Directive 98/59/EC xi Health and Safety at Work etc Act 1974 xii Directive 89/391/EEC xiii Page 13 of TUC document xiv See pages TUC document