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EU EMPLOYMENT LAW
A PRACTICAL GUIDE
Patricia Leighton
EU EMPLOYMENT LAW
A PRACTICAL GUIDE
Patricia Leighton
This book is essential reading for anyone who needs clear and
concise information on the practical effects of EU legislation in
the workplace. The increased mobility of workers in the EU
makes it more important than ever that EU employment
legislation is understood, implemented effectively and
businesses are compliant. All too often, people have found
EU law inaccessible and unnecessarily complex, which is why
Professor Leightons approach in this book is so refreshing
and will be valuable to so many people.
Vice President of the European Parliaments Employment and Social Affairs Committee
Liberal Democrat European Employment and Social Affairs Spokesperson
w: www.thorogoodpublishing.co.uk
Rachel Burnett
Susan Singleton
Corporate Governance
David Martin
Rebecca Attree
Contents
Preface .........................................................................................................vi
About the authors......................................................................................vii
List of abbreviations.................................................................................viii
INTRODUCTION
11
Introduction................................................................................................12
Soft law ......................................................................................................14
Challenging legislation..............................................................................14
Law processes ............................................................................................15
Council presidency ....................................................................................16
Legal base ...................................................................................................17
Consultative bodies ...................................................................................18
Right of legislative initiative .....................................................................19
Legislative procedures Special legislative procedure .........................20
Legislative procedures Ordinary legislative procedure......................21
Social dialogue negotiating in the shadow of the law ........................23
Delegated legislation comitology .........................................................23
The UK government is not enforcing EU employment law correctly.
What can be done? ....................................................................................24
Frequently asked questions ......................................................................25
iii
27
41
UK law.........................................................................................................42
EU law .........................................................................................................43
Key case-law on EU equal pay provisions ..............................................44
Equal treatment for men and women......................................................49
55
FAMILY-FRIENDLY MEASURES
75
UK law.........................................................................................................76
EU legislation .............................................................................................77
iv
CONTENTS
FREEDOM OF MOVEMENT
85
95
107
10
HELPFUL SOURCES
121
1. Websites................................................................................................122
2. Books and articles................................................................................123
E U E M P L O Y M E N T L AW A P R A C T I C A L G U I D E
Preface
In 1989, I was working at what is now the Institute of Employment Studies. The
employer members could nominate topics for research. This could be into pay,
flexible working, recruitment practices, etc. One member said: Tell us about
this Europe thing! Rumour has it that, as employers, we ought to know more about
it, so what is it going to mean for us?
As we now know, the answer to that question is a great deal!
The completion of the research Report1 for employers coincided with the considerable tensions and controversies leading up to the Maastricht Treaty of 1991.
Employment law was suddenly high profile. The Treaty gave the UK a social
(employment) policy Opt-out and many breathed a sigh of relief. However, three
years before completing the Report, in 1986, the UK had agreed to probably
the most radical EU treaty, which had established the so-called four freedoms
(free movement of Goods, Services, Capital and, importantly, People) but had
also introduced the possibility of Qualified Majority Voting for law-making for
some topics. This prevented a few countries blocking legislation. Significantly,
this change included health and safety. So, despite Maastricht, aspects of employment law moved on at speed in the next few years.
Twenty years on, few would challenge the contention that not only is European
employment law of considerable importance but it has also changed the way
we think about the role of law in the workplace. It has also introduced a new
vocabulary and an increasing number of work-related rights, and has put emphasis
not only on what decisions employers make but also on how they make them.
It is important to understand the differentness of EU law, as over the years the
failure of governments and employers to take this on board has resulted in costly
litigation, embarrassing losses and either the award of high levels of compensation or the need to change UK legislation. Undoubtedly, the EU has been the
single most important driver of legal change and the nature and role of this law
cannot be neglected.
The EU has not just produced much employment law it is different law!
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List of abbreviations
Article
COR
Council of Ministers
CE
Council of Europe
Dir.
Directive
EC
European Commission
EESC
EP
European Parliament
LT
SEA
TEU
TA
TR
2. Courts
ECJ
ECHR
3. Legislation
See individual chapters Under Soft Law
EES
4. Other
OECD
viii
L I S T O F A B B R E V I AT I O N S
Civil law the basis of law in most EU states with its origins in Roman
Law, re-enforced by the Codes Napoleon. Legislation establishes the
basic legal principles.
Common law the legal system of the UK and Eire, along with many
Commonwealth countries. It is case-law based, i.e. the law develops
from the application of rules to given factual situations. There is a strong
role for judges in not just applying legal rules but in developing the
law itself. It operates very differently from the civil law.
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Chapter 1
Introduction
The aims of this report
UK employment law
A summary
What areas of HRM practice are most affected by
EU employment law?
Frequently asked questions (FAQ)
E U E M P L O Y M E N T L AW A P R A C T I C A L G U I D E
Chapter 1
Introduction
European employment law is as old as the EU itself, in that the Treaty of Rome,
1957, included a requirement for equal pay between men and women. This was
an extraordinary intervention, given that we did not in the UK begin to consider
legislating for equal pay until the late 1960s. The driver for the Treaty provision
was that of preventing member states competing on an un-level playing field,
i.e. that those countries that permitted low pay for women were able to trade
more cheaply. This remains a key driver of EU law in a situation where there is
a direct link between labour costs and employment law costs, and therefore the
ability to compete with manufacturers and service providers across the Union.
It is always important to set the legal rules for employment within this
economic and multi-national environment. Employment law becomes very important for all member states in the context of it affecting all cross-border activities
and where the policy intention is clearly to ensure fair competition.
The Four Freedoms of the EU are:
Freedom of trade, with the removal of all direct and indirect barriers.
The Four Freedoms underpin EU policy making and law, and the strength of
the underpinning philosophy should not be underestimated. We have had controversies in the UK about British jobs for British workers. We have also had
complaints about the numbers of Polish and other workers in the UK. However,
we need to remember the numbers of UK nationals freely living and working
in other parts of the EU who should also have unobstructed access to labour
markets and employment. The British jobs etc. mantra can only be achieved
by the British workers having the skills and aptitudes required for the work and
cannot be achieved through obstructing the employment of other EU nationals.
Essentially, the EU is one labour market!
1 INTRODUCTION
UK employment law
This is just a reminder of the features of our law its content, procedures and
remedies. These are the matters that we take for granted as being the way things
are done. It is the impact of EU employment law on these traditions that is so
important to understand.
Employment law does not have a long history in the UK. It grew out of the twin
sources of first, the law of master and servant and, second, legislation applying
to various (typically) low-skilled occupations such as labouring and farm work.
Another influence was the law that applied to professions and skilled activities,
whereby the professions were largely self-regulating and autonomous. Employment law, as a distinct area of law, began to emerge in the 19th century with
some protective legislation for those working in dangerous industries and with
restrictive legislation applying to trade unions.
E U E M P L O Y M E N T L AW A P R A C T I C A L G U I D E
In this respect it is important to note that trade unions, their members and trade
union funds and activities have only recently been in receipt of some protections in law in the UK, and that even today workers have no express right to
withdraw labour and those who do run many risks. This is in marked contrast
with other EU states, where going on strike is generally protected through the
constitution and individuals are rarely penalised.
At the heart of our employment law is the contract of employment. The law
has always applied the notion of freedom of contract and the idea that contracts
are, indeed, negotiated much as a commercial contract would be. Relevant features
of employment contract law are:
Over the years the courts have added important implied terms to the
terms that have been expressed by the parties. Of considerable
importance is the implied term of trust and confidence that, essentially,
cements the employer/employee relationship and requires supportive
conduct that emphasises the interdependence of the employment
relationship. The duties of fidelity, professional care and responsiveness
to lawful orders are imposed on the employee and the employer must
pay the agreed wages, provide a safe working environment and
indemnify the employee against loss. Outside the common law system
(i.e. also in most parts of the EU) the contract of employment is of lower
significance, set against legislation/codes and collective agreements.
1 INTRODUCTION
Health and safety law. This is long established in the UK, but originally
based on specific industries and activities, with a strong link to the
common law notion of taking reasonable care for workers. This is
an area of law that has had to make significant adjustments to the
different approach of EU health and safety law that is based on risk
management rather than reasonableness.
E U E M P L O Y M E N T L AW A P R A C T I C A L G U I D E
Trade unions and collective action has been both tightly regulated
and treated in a distinctive manner in the UK. Trade unions are controlled,
much as companies are. Industrial action has to follow prescribed
procedures, collective agreements are not normally legally binding and
those involved in strike action remain at risk of job loss, especially where
the action they took was unofficial. Trade union membership, in an
EU comparison, remains relatively high in the UK, but the ability of trade
unions to influence decision making appears to get progressively weaker.
A summary
Traditional UK employment law is:
1 INTRODUCTION
Industrial action.
Despite this, most areas of HRM practice are affected to a greater or lesser extent.
These include:
E U E M P L O Y M E N T L AW A P R A C T I C A L G U I D E
Health and safety/well being, including working hours and oncall/standby working.
Overall, this is a wide agenda that is affected. However, it is not just a matter
of the rules from the EU that impact but also the way in which they do and the
type of demands made on employers. There is also the question of soft law
measures, such as Opinions and Recommendations (See Chapter 3). Do
employers also have to comply with them and what happens if they dont? Let
us now turn to some frequently asked questions on EU employment law.
1 INTRODUCTION
especially mindful, as sometimes the law affects them before private sector
employers.
E U E M P L O Y M E N T L AW A P R A C T I C A L G U I D E
on disability rights for carers was actually referred by an ET). The ECJ acts as
the guardian of EU law but it is not an appeal court for litigants.
10
Chapter 2
Law making in the EU
(by Richard Owen)
Introduction
Soft law
Challenging legislation
Law processes
Council presidency
Legal base
Consultative bodies
Right of legislative initiative
Legislative procedures Special legislative procedure
Legislative procedures Ordinary legislative procedure
Social dialogue negotiating in the shadow of the law
Delegated legislation comitology
The UK government is not enforcing EU employment law
correctly. What can be done?
Frequently asked questions
E U E M P L O Y M E N T L AW A P R A C T I C A L G U I D E
Chapter 2
Law making in the EU
Introduction
Law making in the EU differs in many respects from UK law making in Westminster. There are a number of different legislative procedures and, in addition,
there can be special procedures for delegated legislation as well as EU employment law involving the social partners, i.e. organisations representing
employers and employees, as well as the self-employed/small business community. This process is known as social dialogue. Opportunities exist to transform
agreements reached through social dialogue into legislation. So, EU employment law can be made in the following ways:
There is no one legislative body at the EU level. The three main actors in legislative procedures are:
They all have a legislative role and the passage of legislation requires a constant
discourse between the three of them. Each one of these institutions represents
a particular interest.
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2 L AW M A K I N G I N T H E E U
Commission
Council of Ministerss
European Parliament
Community interes
interest
st
National interest
Peoples of the
Member States
Each one of these institutions has a defined role in law making to ensure that all
of these interests are represented. This is a principle known as institutional balance.
There are also methods of challenging EU legislation with no equivalent in respect
of UK law. Unlike the UK, where there is no written constitution and every Act
of Parliament is of equal status, in the EU there are primary laws and secondary
laws, with the primary laws having higher status.
Primary legislation
Secondary legislation
The primary laws are the founding Treaties and the secondary laws are:
Regulations
Directives
Decisions
Regulations bind everyone and do not need national legislation to give effect
to them i.e. once they are passed in Brussels they become law in all 27 Member
States.
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Soft law
In addition to those different types of law specified above, the Commission has
used new ways of developing policy, for example, notices, codes of practice,
recommendations and opinions. Although they are non-binding and therefore
not capable of being challenged by the courts, they can be used for evidential
purposes. For example, if an employer can prove compliance with a code of practice, e.g. on harassment, that is strong evidence that the employer has not breached
the law. These are known as soft law methods. Soft law methods have been
relied on strongly in the formulation of the EUs employment policy since the
2002 Lisbon European Council, in a process known as the Open Method of Coordination. Its a method of rule making that allows for the agreement of policy
guidelines through exchanges of information on:
Best practice
Benchmarking
Monitoring
Target setting
Peer review
Challenging legislation
Legislation can be annulled or declared invalid by the European Court of Justice
(ECJ) if:
There is no power to pass the secondary law under the founding Treaties
The law was not passed in the public interest e.g. the legislature acted
fraudulently
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2 L AW M A K I N G I N T H E E U
Whilst only the ECJ can annul legislation or declare it invalid (there is little practical difference in the effect of either of these declarations) a UK court can
temporarily declare EU secondary laws invalid. However, if it does so, it must
refer the case to the ECJ for an authoritative ruling.
All EU legislation has to respect these principles:
Subsidiarity
Proportionality
The former essentially requires that all decisions should be taken at the
national level unless action would be better taken at the EU level. The latter
requires that the legislator can only take such action as is proportionate to the
aims of the legislation. At times, this has been a very challenging principle for
the UKs legal system, although it is now becoming embedded. It challenges the
traditional British view of the role of the judiciary, which has always been seen
as subordinate to the UK Parliament. Under the principle of proportionality, if
the judge thinks that the aim of the legislation could have been achieved in an
alternative manner that is less restrictive of peoples freedom, then that alternative should be used. This places the judge in a quasi-judicial role, questioning
the legislatures actions, which until recently was not part of British legal culture.
However, there are many examples in which a breach of the principle of proportionality has been the successful basis for legal action challenging the legality
of EU legislation.
Law processes
In order to understand how EU employment law is made, its necessary to have
some understanding of how the Brussels machine works. If a sufficiency of the
Member States, particularly the larger States, do not support an employment
law proposal, it will not get off the ground and will be strangled at birth. Also,
the Member States will not always take decisions based on the merits of legislation but will sometimes make labyrinthine horse-trading deals involving
different, unrelated pieces of proposed legislation. For example, when the Temporary and Agency Workers Directive (2008/104/EC) was first mooted in 2002, the
UK government opposed it. However, the government eventually entered into
a compromise deal and agreed to support it provided opt outs in the Working
Time Directive were retained. This agreement was shown not to be built on firm
foundations when the European Parliament made its views plain that it would
not support continuation of opt outs!
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E U E M P L O Y M E N T L AW A P R A C T I C A L G U I D E
Brussels is one of the lobbying capitals of the world and those most likely to
influence the content of legislation retain a presence there. The EUs institutions
are in a process of continual discussion and those law making processes which
fall short of the formal legislative procedures can be best influenced, for example,
by employers organisations or the European Trade Union Confederation (ETUC),
which retain offices in Brussels to communicate their members objectives and
concerns quickly to all the different actors.
Council presidency
At present, each Member State takes its turn, in rotation, to be president of the
Council of Ministers for a six-month term. One of the advantages of holding
the Council presidency is that a Member State not only calls meetings but also
sets the agenda for them. This has huge implications for the EUs social agenda
as it provides some indication at the start of a Presidency as to whether there
is likely to be any progress in proposed employment legislation at the start of
a six-month term. For example, a national government with a deregulatory labour
market agenda is not going to be putting new employment law measures on
the agenda, whilst a Member State with high levels of employment protection
is going to be very keen to see employment law measures high on the agenda
as it will be eager to see other Member States adopt at least a minimum level
of protection so that its producers are not unduly economically disadvantaged
by facing higher labour costs. Of course, holding the Presidency and setting
the agenda does not guarantee that the Council will agree the proposed measure.
For example, in the latter half of 2006 Finland held the Presidency and declared
from the outset that one of its highest priorities was to get agreement within
the Council on an amendment to the Working Time Directive (2003/88/EC), but
was unsuccessful, probably for a combination of reasons. Firstly, it is not a populous State so lacks the political muscle of larger States; secondly, the measure
was too controversial and lacked a sufficiently large critical mass of support.
The Treaty of Lisbon, which came into force in December 2009, changed the
running of the Council with the intention of creating greater continuity. It
proposed that the heads of government meetings be led by a Council President
appointed for a renewable 2-year term. When government ministers at a lower
level than the head of government meet, the Treaty of Lisbon provides for a team
presidency for the Council of Ministers.
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2 L AW M A K I N G I N T H E E U
Legal base
Every piece of EU legislation must have a legal base i.e. it must state which
section (or Article) of the founding Treaties has given the EU the power to pass
that particular piece of legislation. The legal base will specify the type of legislative procedure that should be used, as the choice of procedure will affect the
powers the European Parliament has over the passage of the legislation and
determine whether the national governments, in the Council of Ministers, must
agree the legislation unanimously or can pass it by a majority vote. The type of
vote the Council of Ministers takes indirectly affects the powers the Commission has over the legislation as well. All legislation begins with a draft proposal
from the Commission but it does not have the final decision over whether the
legislation is passed. If the Council of Ministers takes a majority vote then its
more likely that the Commissions draft proposal will not need as much amendment, as its not necessary to get the agreement of 27 different governments,
which is no easy task. If the legislation has to be agreed unanimously then compromises are much more likely to be necessary with the result that the Commissions
proposal is likely to be changed.
Article 19 of the Treaty on the Functioning of the European Union is an
example of an important legal base in EU equality law, as it prohibits discrimination on grounds of sex, racial or ethnic origin, religion or belief, age, disability
and sexual orientation. It was used as the legal base for various Community
anti-discrimination measures such as the Framework Employment Directive
(2000/43/EC), the Race Equality Directive (2000/43/EC) and Directive 2004/113/EC
implementing the principle of equal treatment between men and women in the
access to and supply of goods and services. Article 153 of the Treaty on the
Functioning of the European Union is a further important legal base for employment law measures and is discussed further below.
In the early days of the EU the choice of legal base rarely gave rise to controversy. However, as the powers of the European Parliament have grown, so have
the number of legal base cases, as the choice of legal base can affect its powers.
It can be another, technical way of challenging legislation which is not to the
complainants liking. For example, in Case C-84/94, UK v. Council, the so-called
Working Time Directive case, the UK government challenged the legal base
of the Working Time Directive. The government had been pursuing a deregulatory labour market policy and was therefore opposed to the Directive, but had
abstained when the matter had been before the Council. Instead, it challenged
it before the courts on the basis of an incorrect legal base as it objected to using
a health and safety base rather than an employment base from which the UK
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E U E M P L O Y M E N T L AW A P R A C T I C A L G U I D E
had opted-out at that time. The UK also argued that the measure was contrary
to the principle of subsidiarity. Although the UK government was unsuccessful
on both counts, the case illustrates the type of challenge that can be made at
the EU level which simply does not exist at the domestic UK level due to Britains
lack of a written constitution and EU-style hierarchy of laws.
Consultative bodies
In addition to the law making institutions of the Commission, Council of Ministers and European Parliament, the Treaty provides for consultative bodies:
Employers
Employees
Various interests
Farmers organisations
Small businesses
The professions
Consumer organisations
Environmental organisations
Non-governmental organisations
Although this would seem, from its composition, the natural body for groups
interested in employment law to lobby, it has not been an outstanding success.
One of its main difficulties is that the interests of the different groupings frequently
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E U E M P L O Y M E N T L AW A P R A C T I C A L G U I D E
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2 L AW M A K I N G I N T H E E U
The special procedure is used for the following legal bases which are of interest
to employment lawyers:
Article 153 (including consultation with the EESC and the Committee
of the Regions) social security and social protection of workers;
protection of workers where their employment contract is terminated;
representation and collective defence of the interests of workers and
employers; conditions of employment for third country nationals legally
residing in Community territory
Commission
EESC
Proposal
Council of Ministers
Committee of
the Regions
European Parliament
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E U E M P L O Y M E N T L AW A P R A C T I C A L G U I D E
During the second reading, the European Parliament will approve, reject or
propose amendments to the Councils position. If the European Parliament and
the Council cannot agree, a Conciliation Committee will be set up consisting of
an equal number of representatives from the Council and European Parliament
with the Commission mediating. If they cannot reach agreement, the proposed
legislation will lapse. In practice, there are informal meetings existing alongside the Conciliation Committee.
Second reading (ordinary legislative procedure)
Common Position
European Parlia
Parliament
amen
nt
Accepts
EEuropean
urop
op
pean Parliam
Parliament
men
nt
Rejects
Legislation
Adopted
European
Euro
pean Parliament
Parli
Propo
Amen
Proposes
Amendments
Conciliation
Committee
The ordinary legislative procedure is used for the following items under Article
153 of the Treaty on the Functioning of the European Union, following consultation with the EESC and the Committee of the Regions:
Working conditions
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2 L AW M A K I N G I N T H E E U
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If you are trying to enforce your rights under a directive against a public
body, then you can do so under the principle of direct effect. In other
words, you could rely on the directive itself rather than the national
legislation if the national legislation is defective in some way or the
government has failed to implement the directive. However, in order
to do this a strict set of conditions apply. The directives implementation
period must have expired and the rights under the directive must be
clearly set out and identifiable. Note that you can only rely on a directive
against a public body and not an individual or a private sector company.
If you wish to enforce EU law employment rights against an individual
or private company, you need to consider steps 2 or 3 below.
2.
Insist that the national judge interprets the national law to conform
with the Directive. This is a principle known as indirect effect or
conform interpretation. However, the national judge is only under
such an obligation if its possible to do so. S/he can only be under this
obligation if its possible to interpret national legislation in this way.
S/he cannot overturn national law if its meaning is clearly in conflict
with the Directive.
3.
Sue the national government for breaching your rights for either not
implementing the Directive or implementing it incorrectly. If its the
latter then it must be shown that the governments breach was
sufficiently serious. This is a difficult concept as its not enough to
prove the government was in the wrong. It must be proven that the
government was seriously in the wrong.
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2 L AW M A K I N G I N T H E E U
If you wish to challenge before the ECJ, very strict tests have to be satisfied proving
that the complainant has sufficient standing. However, challenges can be made
before national courts, although if a national court declares EU law invalid it
must refer the case to the ECJ.
25
Chapter 3
A brief history of the evolution and
key features of EU employment law
Introduction and overview of the scope and key directives
The key areas for EU legislation
The phases of development of law
Question 1 Why do we need EU employment law at all?
Question 2 What are the general features of EU employment
law? How different are they from UK law?
Question 3 How interventionist should EU law be,
especially the ECJ?
Question 4 What about traditional collective labour relations?
Question 5 Where are we now?
Impact of EU employment law to date
Impact on HR practice
A postscript the EES
Question 6 Why is this of relevance to HRM?
Summary points
The chapters on substantive areas of law
E U E M P L O Y M E N T L AW A P R A C T I C A L G U I D E
Chapter 3
A brief history of the evolution and
key features of EU employment law
Topics that are thought to be important for social cohesion and social
justice for modern democratic states.
Those that are already developed in member states and will therefore
be relatively easy to promote across the EU.
Those thought necessary for a level playing field and to avoid social
dumping (for definition see Chapter 1).
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Note the key role for soft law, especially the European Employment
Strategy.
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Early laws from 1957: equal pay, some health and safety, equal
treatment for men and women, 1976; Acquired Rights, 1977.
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2.
3.
4.
5.
It is again important to note those employment law topics that do not feature,
and thus remain exclusively covered by UK law. These include:
Industrial action.
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The reasons that are put forward in favour of developing employment law that
is consistent across member states (even though the form that law takes can
vary) are:
Comments
There is a very long-running debate as to whether employment laws/rights make
economies uncompetitive with emerging economies and lead to job losses in
EU states. We have seen the outsourcing of work to countries such as India and
Malaysia, reportedly due in part to their less demanding employment laws. Others
argue that legal protections, especially as regards job security, inhibit innovation and flexibility. However, others argue that far from inhibiting competitiveness,
a well trained and protected workforce ensures that workers are valued and
remain loyal and productive.
So, what is the evidence? It is quite mixed because the most productive and efficient economies, according to the OECD, include USA (relatively little regulation)
and Sweden, Denmark and France (higher levels of regulation). This may indicate that law is a less important factor than we often think it is when it comes
to impacting on the effectiveness of businesses. Or, perhaps, that other factors,
such as investment in training and management, are more important?
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However, the debates and controversies do remain important in that they explain
the opposition to various proposed or amended Directives. These include:
The Working Time Directive, 1993, and attempts to revise it, including
through the removal of the UKs 48 hour opt-out.
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It sets down basic principles that are then applied by the ECJ and
national courts, or are implemented through national legislation.
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At the same time, it has to be recalled that in some respects UK law and practice is ahead of EU law. For example, our anti-discrimination/equal treatment
agenda has been wider than EU law. Our public sector duty to promote equality
on grounds of sex, ethnicity and disability is a far wider obligation than in current
EU law. Similarly, our family-friendly laws are more advanced than EU law. We
have also had, since 1963, requirements on employers to provide written information on terms of work, a matter not dealt with by the EU until 1991 and then
with not much vigour (Employee Information 1991 Dir.91/533). So, the picture
is more complex than might be thought with EU law not always in advance of
ours and not always being the cavalry coming over the hill for workers rights.
It is possible to provide a broad spectrum of EU laws impact. The left handside represents those areas/topics where impact has been most keenly felt. The
right-hand side represents those areas where EU law has had relatively little
impact.
H&S
I&C
Org.changes
Equality
Status
Pay+
Disci/dismissal
Impact on HR practice
Therefore, the following areas of work have probably been the most affected:
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Vocational training.
The Strategy was to build Guidelines to be sent to each member state on employment policy, the Guidelines being initially grouped around Four Pillars. These
were Employability, Entrepreneurism, Adaptability and Equal Opportunities, and the idea was that each year the governments of each state would report
back to the Commission on measures they had taken to meet the demands of
the Guidelines. The Guidelines dealt with matters such as the role of the public
employment service (in the UK, Job Centre Plus) in, say, encouraging young
people, lone parents and women into the labour market, and the removal of red
tape in up setting a small business.
The novel aspect of the EES was the Open Method of Co-ordination whereby
the annual report from each state (National Action Plan) was reviewed by the
Commission, and reported back on through the device of a Recommendation
to each government, thereby setting up a system of benchmarking. The aim was
to support best practice but also to name and shame poor government performance. The so-called Lisbon Process of 2000 set targets for labour market
participation by women, older people and the young. In recent years the process
has consolidated, with Guidelines set for two years or more and with a direct
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integration with Economic Guidelines. There are now debates as to what has
been achieved during the past 12 years, but until the banking crisis of 2008 there
had been significant reductions in unemployment, improved training and the
removal of many barriers to effective employment practices. However, most
recently, the system has been criticised for lacking vigour and structure, with
the current policy Europe 2020 aiming to build on its better features.
Summary points
The evolution of EU employment law has been one of ebb and flow,
with periods of activity (late 1970s; late 1980s and the 1990s) interspersed
with quiet periods.
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The following topics are not explored, either because they are very
specialised or are not strictly from the EU:
Data protection.
5.
6.
Family-friendly measures
7.
Freedom of movement
8.
9.
39
Chapter 4
Equal treatment of men and women
UK law
EU law
Key case-law on EU equal pay provisions
Equal treatment for men and women
E U E M P L O Y M E N T L AW A P R A C T I C A L G U I D E
Chapter 4
Equal treatment of men and women
This is likely to be the most familiar of the European employment law topics.
The basic strategy of both EU and UK law are broadly aligned, with familiar
concepts, such as direct and indirect discrimination, harassment and victimisation, appearing in both UK and EU law.
Content of Chapter
Equal pay
UK law
The key pieces of UK law are:
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EU law
The main pieces of legislation are:
Article 141 of the Treaty of the European Union, 1993, requires that:
1.
Each Member State shall ensure that the principle of equal pay for male
and female workers for equal work or work of equal value is applied.
2.
For the purposes of this Article, pay means the ordinary basic or
minimum wage or salary and any other consideration, whether in cash
or in kind, which the worker receives directly or indirectly, in respect
of employment from his employer
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2.
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This confirmed that a contracted out pension scheme was pay and the fact
that payment was deferred was not relevant.
BILKA-KAUFHAUS V WEBER VON HARTZ (1986 C-170/84)
The claimant was a sales assistant in a German department store who had worked
for some years full-time and then moved to part-time work. An occupational
pension scheme required at least 15 years full-time service to be able to join it.
She successfully argued that due to caring responsibilities more women than
men worked part-time and that as pensions were part of pay, as a woman she
had been discriminated against and denied equal pay.
RINNER-KUHN (1989 C-171/88)
In this case German part-timers only qualified for pay during periods of sickness if they worked at least 10 hours per week. Full-timers got payment
automatically. Most of the part-timers were women. Sick pay was held to be
pay and the failure of the employer to justify the difference in treatment amounted
to a breach of equal pay legislation.
Although the law does not require the claimant and the comparator to have the
same employer they should in some way be covered by the same terms and conditions of employment. These might come from a collective agreement applying
to a number of employers or through an associated employer situation. What
is the position when employees work is outsourced? Can they compare themselves with former colleagues?
The ECJ has decided a number of cases on this issue. Clearly, there were fears
that the law could get out of control and lead to inflation if some controls on
the comparison process were not retained.
LAWRENCE V. REGENT OFFICE CARE LTD (2002 C-320/00)
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Clearly, this is a practical decision and has been one that has been confirmed
by Allonby v. Accrington and Rossendale College (2004 C-256/01). In this
case, lecturers with fixed term contracts had them terminated and they were
re-employed but through a teaching work agency. Equal pay claims with other
college lecturers were turned down by the ECJ that re-enforced the need for a
single source of terms of work as between the claimant and comparator.
Can you compare yourself with a previous post-holder?
In an early and radical decision by the ECJ, the decision seems to be yes.
MACARTHYS LTD V. SMITH (1980 C-129/79)
A man was paid 60 a week as a stock room manager. He left in October 1975.
M was appointed to the post for 50 a week. She claimed equal pay with their
ex-employee and the legal issue was whether in making a comparison the two
people had to be employed contemporaneously. No, said, the ECJ, providing
the work was equal work
Jenkins was a part-time machinist at a childrens clothing factory. All the fulltime machinists bar one were male and they earned more on an hourly rate than
the female part-timers. The employer argued that there was a material difference in the situation in that the part-timers were in a different category. Although
the arguments had some success in UK courts, the ECJ firmly rejected them.
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The court relied on the Preamble to the Equal Pay Directive of 1975 that there
should be a principle of equality, and the fact that work is done on different bases,
e.g. at home, at night, etc., is insufficient reasoning in itself to pay one group less.
ENDERBY V. FRENCHAY HEALTH AUTHORITY (1993 C-127/92)
This was one of the longest running yet most important decisions of the ECJ.
Enderby was a speech therapist who claimed equal pay on the basis of equal
value with other specialist groups such as radiographers, psychologists and pharmacists in the NHS. Most of the workers in the comparator groups were male
and most of the speech therapists were female. The employer argued that as
long established collective bargaining processes fixed pay for the various professional groups the differences in pay were justifiable. The employer also raised
the question of the relevance of relative difficulties in recruiting staff.
The ECJ confirmed that having separate bargaining structures could not in itself
justify unequal pay. On the market forces argument, the ECJ held that the
evidence must be there and the employer response must be proportionate. This
means that there must be a link between the relative difficulties in recruitment
and the relative differences in pay.
Perhaps the most important and groundbreaking recent issue has been the role
of seniority in fixing pay. The long established decision of the ECJ in Danfoss
(1989 C-109/88) had concluded that seniority does justify higher pay as there
is a link between length of service and experience and skills. The argument that
women, who typically either enter the labour market later, take breaks for child
rearing, etc. and are hard hit by pay scales that attach overwhelming importance to continuous service, was rejected. The employer must have transparent
pay practices but there is no special need to justify seniority as a criterion. An
argument that longer service equals experience and skills development and benefit
for the employer was accepted.
In the recent case of Cadman v. HSE (2006 C-17/05) this approach (to some
limited extent) has been successfully challenged, though the implications of the
ECJ judgment remain hotly disputed. Cadman was an HSE inspector who was
paid much less than colleagues doing the same job. The deficit, she alleged, was
caused by her later entry to the role. The ECJ re-affirmed the basic proposition
that length of service is generally linked to experience and competence.
However, the door was slightly opened in that if seniority produces an obvious
injustice (For example in a low skilled job where the argument about improved
performance is very weak) it may be that a claim can be made. Recent cases in
national courts have sometimes accepted this argument.
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Overall
EU legislation and the ECJ have together challenged some of the basic causes
of unequal pay. Legislation and case-law is less complex than in the UK, helped
by the fact that there is only one judgment in the ECJ! Indeed, the law is easier
to read and understand than UK law, as it sets out basic principles rather than
detailed rules.
However, words and phrases such as transparency, proportionality and the
principle of equal treatment are not just slogans and are rigorously applied.
The law has shown serious intent, not least in rejecting employer arguments for
leaving pay structures untouched. Many of the legal debates on equal pay have
now been dealt with and the role of the ECJ in equal pay is today much reduced.
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UK law
The key pieces of UK legislation are:
The Act of 1975 set down the basic requirement that there should be no unjustified discrimination between men and women. It recognised direct as well
as indirect discrimination and has gradually been amended to reflect EU legislation and case-law. Hence, harassment and victimisation have been added and
some of the definitions varied. Much of our case-law has focussed on the failure
to obtain employment or promotion and on harassment.
UK law makes explicit reference to the need for one sex or the other in terms
of genuine occupations qualifications (now requirements) as, in effect,
exemptions. (It might be noted that the European Commission has recently asked
for a reduced number of exemptions.) UK law also protects married people
and civil partners. It also recognises the discrimination that can occur due to
pregnancy. The law requires a comparator, though hypothetical comparators
can be used where necessary.
It is important to note the growth of soft law measures in UK law. These require
public bodies to promote opportunity for women, and although there are not
dissimilar provisions in EU law, referred to as mainstreaming gender equality,
UK laws are more rigorous, in terms of reporting, naming and shaming, etc.
and are under the control of the Equalities and Human Rights Commission.
The Equality Act, 2010 extends employer duties, especially public sector
employers, and will include a duty to respond to economic and social disadvantage, allow for positive discrimination in some circumstances and make pay
auditing a reality. It also develops a new terminology and harmonises existing
rules.
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EU law
The key pieces of legislation are:
These laws, taken together, aim to provide equal opportunity and treatment for
men and women and, unsurprisingly, the legal formula is much as it is in the
UK. EU law has:
Direct discrimination.
Important have been the Burden of Proof provisions, though they have not yet
had major impact in the UK. The EU recognised that winning a case in national
courts was often problematic because much of the information to support the
claim was held by the employer. This might include interview records, copies
of references, emails between managers, etc. The Directive is couched in general
terms. It states that: (If a claimant) can establish facts from which it may be presumed
there has been direct or indirect discrimination, it shall be for the respondent to
prove there has been no breach of the principle of equal treatment.
Unfortunately, although case-law in the UK has interpreted this requirement
very narrowly and has, with reluctance, sometimes shifted the burden of proof,
there has been no significant ECJ case-law. It appears that although statistical
data is helpful, unless a prima facie case can be established that indicates that
the statistical data is the consequence of discrimination, the burden will not shift.
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ECJ case-law
Much of the case-law has focussed on the rights of part-timers (before they got
their own Directive in 1997) and maternity cases. However, the ECJ has also
tackled some important issues regarding the jobs and roles that women have
sometimes been excluded from and which, in effect, reduce career progression
or access to enhanced pay. There has also been the controversial issue of positive discrimination.
In Kriel v. Germany (2000 C-285/98) the ECJ held that the exclusion of women
from combat units of the armed forces is unlawful. Any justification for exclusion has to be for a legitimate aim and has to be proportionate. There have been
similar rulings with regard to women and night work, to carry arms in the police
force and to be able to join the marines.
The protection of pregnant women or women of child bearing age etc. has
been very robust. The protections last for as long as the period of maternity leave
provided by legislation. It is incorrect to compare the rights/benefits, etc. of pregnant woman with a man on sick leave. Pregnancy related rights are treated
distinctly in EU law.
The key decisions that the ECJ has made include:
If steps are taken but not implemented to replace a woman while she
is on maternity leave and she only learns about it when she intends to
return, it will nonetheless be discrimination (Parquay, 2007 C-460/06).
The fact that a pregnant woman was taken on a fixed term contract
to cover maternity leave of another is discrimination, even though most
of the fixed term period would be taken up with training and then
maternity leave.
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Confirmation that the maternity period does not break the period of
continuous employment (Sass, 2004 C-284/02).
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Women and men should have access to all roles and duties within the
organisation and should not, for example, be excluded because they
might be assumed to lack robustness in dealing with emotional and
sensitive issues, or might not be prepared to do night work or what
are generally perceived to be difficult shifts, or to be exposed to bad
language, etc.
In the light of research data indicating that women face major obstacles in achieving leadership or senior management positions in
organisations (as well as higher pay), all career development practices
need review to ensure they are not disadvantaging women. Is the organisational culture, its procedures, etc., giving out a message that applying
for promotion is not worthwhile if you are a woman or that women
do not fit in?
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Chapter 5
Protection of other groups from
discrimination
Part A: Other protected groups
Part B: Atypical/non-standard working
Summary points
E U E M P L O Y M E N T L AW A P R A C T I C A L G U I D E
Chapter 5
Protection of other groups from
discrimination
This chapter also contains much familiar material, though EU and UK law have
developed at different speeds and sometimes in very different ways. EU legislation was prompted by Article 13 of the Treaty of Amsterdam which established
a new legal base for extending equal treatment laws.
It should be noted that Part A of this Chapter covers the protection of defined
members of protected groups; Part B deals with the requirement for non-discrimination based on type of work pattern.
Disability
Sexual orientation
Age
UK law
The key pieces of UK (home grown) legislation are:
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It will be noted that some of the legislation is from a relatively early era (indeed,
race discrimination laws date from 1968, though the major employment duties
are in the 1976 Act). The following might be noted:
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The overall position is that employers, legal advisors, trade unions and others
have long experience of dealing with discrimination claims. More recently, group
actions have become a feature, soon to be legitimised through the Equality Act,
2010. Consequently, there is wide awareness of the demands of law, the negative publicity that a claim can give rise to and the need to have robust policies
and practices in this area.
EU Law
Although the EU recognised sex discrimination at least in terms of unequal
pay from the outset, other areas of discrimination law took much time to emerge.
Pressure mounted through, for example, claims by gay people and people who
had undertaken gender reassignment under the sex discrimination legislation.
Pressure grew in the 1990s to deal with these groups in an explicit way. The
new legal base from the Treaty of Amsterdam allowed the two directives of 2000
to be adopted at the Lisbon Summit of that year. Therefore, the key pieces of
EU legislation are:
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lation. They also sometimes covered other areas of disadvantage, such as family
name, educational background, trade union membership, etc.
The EU legislation provides for the outlawing of discrimination based on race
and ethnicity, religion or belief, age, disability and sexual orientation, in
terms of direct and indirect discrimination, harassment and victimisation. It might
be noted that the provisions regarding age provided member states with some
discretion as to circumstances where an age bar might be acceptable, i.e. it
was for a legitimate aim (e.g. to ensure safety/ protection, provide opportunities for young people) and the response (the bar) was a proportionate
response to that aim. These matters have proved very controversial and have
led to interesting ECJ case-law.
EU legislation does not provide definitions of, say, disability or sexual orientation and is in marked contrast with UK legislation that is very detailed and
analytical. This generality of EU law provides considerable scope for arguments
to be put before national courts and the ECJ, and the net result may be more
restrictive definitions than in the UK. (For example, our definition of disability
is wide and automatically includes some illnesses.)
Article 6 of the Framework Directive does deal in a bit more detail with age. It
explicitly allows for the setting of minimum and maximum ages for entry to an
occupation, if justified. Article 76 1(b) provides for the fixing of minimum conditions of age, professional experience or seniority in service for access to
employment or to certain advantages linked to employment (e.g. pensions).
Interestingly, the Directive deals with entry to occupations and, for example,
that a maximum age might be justifiable based on the training requirements
of the post in question or the need for a reasonable period of employment before
retirement (Art 6,1 (c)).
Article 7 of the Directive explicitly provides for Positive Action to prevent
or compensate for disadvantages, to maintain or adopt provisions on the protection of health and safety at work or for the integration of people into the work
environment. Positive action is expressed very generally and is stated to be there
for ensuring full equality in practice such that member states can adopt measures to achieve this.
Article 11 deals explicitly with Victimisation to protect employees against
dismissal or other adverse treatment by the employer as a reaction to a complaint
with the undertaking or to any legal proceedings aimed at enforcing compliance
with the principle of equal treatment.
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So, we have legislation with clear policy aims, covering the groups most generally thought to suffer disadvantage in the workplace. The policy aims are backed
up with the right to take positive action and the duty not to victimise. However,
what is noteworthy is what is not there. This includes definitions and, aside from
age, little on justification/defences. The courts, therefore, have to rely on general
legal principles, much drawn from sex discrimination law.
It should be noted that a particularly high number of member states have had
proceedings initiated against them for failure to transpose the 2000 Directives, especially regarding sexual orientation.
The key case-law has concerned mainly the question of access to occupational
benefits and survivorship rights for the same-sex partner. The ECJ has
confirmed that there should not be discrimination in comparison with rights
etc. for heterosexual couples.
In the case of Maruku (2008) C-267/06 a same-sex partner claimed widowers
rights in an occupational pension scheme where widows were able to claim.
The 2000 Directive was relied on. It was relevant that under German law survivorship rights accrued for life partners as well as spouses so it was discriminatory
to exclude same-sex life partners.
B) RELIGION OR BELIEF
Although there has been much controversy in some member states regarding,
for example, the wearing of the veil in France, there have been no significant
cases before the ECJ to date on the 2000 Directive. We therefore have no decisions on the scope of the provisions and even though we have had many cases
in the UK, there have been no referrals to the ECJ. Article 4 of the Directive
provides justification where there is genuine, legitimate and justified requirement for persons of a particular religion or belief. This applies to churches and
to organisations with a particular ethos and goes further than UK law in allowing
limitations on those who can join or work in those organisations. Organisations
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can require such people to act in good faith and with loyalty to the organisations ethos.
C) RACE AND ETHNICITY
There have been few cases in this area either but it is clear that glaring examples of direct discrimination have been confirmed as unlawful by the ECJ.
Feryn (2008 C-54/07) was a Belgian referral that concerned a home improvements company. The work generally involved workers working in domestic
premises. The company advertised that they did not employ any Moroccan
workers. The ECJ held this to be clearly contrary to the 2000 Race Directive.
D) AGE
It will be recalled that the 2000 Directive simply stated that age discrimination
was unlawful though did explicitly identify a number of situations where age
bars on entry to a job or occupation could be discriminatory. Any other bar or
discriminatory treatment is therefore subject to justification. Article 6 defines
a legitimate aim as, including legitimate employment policy, labour market and
vocational training objectives and the means of achieving that aim are appropriate and necessary.
Case-law has largely concerned enforced retirement rather than denial of entry
to an occupation, though many important cases are currently under consideration, including the rules of professional bodies that deny or end membership
once certain ages have been reached (or have not been reached!).
The ECJ case of Palacios de Villa (2007 C-411/05) confirmed that the Directive does not bar member states from having age bars, in the case of the enforced
retirement of a worker in Spain.
Of course, from a UK perspective the Heyday (2009 C 388/07) case was important in that it was asserted that our Age Regulations contravened the Directive
by explicitly providing that employers could require retirement at the age of 65.
The ECJ restated the basic rules relating to justifying age discrimination but emphasised the need for convincing data to support the legitimate aim of employment
policy etc. If arguments are based on high young persons unemployment and
linked to active labour market policies, it is possible arguments will be successful.
The UK rule is, of course, a blanket rule and not linked to the specific needs of
particular occupations. The UK government elected in 2010 has signaled its intention to remove the default retirement age, despite the Heyday case.
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The ECJ in other cases has been reluctant to interfere in national legislation or
practices. In Peterson (2009) Case-341/08 the ECJ held that it was justifiable
in German law to require dentists (and doctors) to cease to practice at 68. The
aims were expressed as reducing the high costs of staff in public health provision and increasing opportunities for younger health professionals. The
acceptance of costs as a reason to possibly justify requiring retirement is an interesting development.
At the entry level, the ECJ has also recently confirmed that an age bar of 30 for
entry to the French fire service was justifiable (Wolf, 2009 C-229/08). The reasons
that were accepted as justification by the ECJ included the need to provide a
full career for entrants, the physical strength required where the burden falls
largely on young workers and adequate payback for the investment in training.
Again, ECJ case-law seems to confirm a more limited approach to equal treatment issues than we are familiar with in the UK. This means that we should have
few problems with the Directives in the UK as employers or governments etc.
What about other provisions impacting on older people? The case of Mangold
(2007) C-144/04 has proved very controversial. German law places strict controls
over the circumstances when a fixed term, as opposed to a permanent contract,
can be offered. There must, in effect, be a genuine short term need. Employers,
of course, often find fixed term contracts attractive, as they are easier to enter
and terminate. There was policy development in Germany that permitted older
people (55+) to be offered fixed term contracts in an effort to get employers to
recruit older workers. To boost this policy, the German government reduced
the age at which fixed term contracts could be offered to 52, clearly leaving more
workers open to easy termination of their contracts. This was clearly discriminatory, but was justified by labour market policies geared to encouraging
increased participation by older workers. The ECJ held that there will be circumstances where labour market policies e.g. to deal with unemployment constitute
a legitimate aim. However, in this case the lowering of the age to 52 was not
acceptable as employers could simply put all older workers onto such contracts.
E) DISABILITY
As well as requiring equal treatment for those with a disability, the Directive also
requires, through Article 5, Reasonable accommodation for disabled persons.
The Directive specifically refers to training, unless the measures to enable a disabled
person to participate would place a disproportionate burden on the employer.
It will not be disproportionate if such measures are required by national law (as
they are in the UK and there is no concession for, say, small firms).
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To date, case-law from both member states and the ECJ has applied a narrower
definition of disability than ours in the UK. This has emphasised that a disability
is not an ordinary illness whereby the individual can be expected to recover. This
is a different approach to protections than in UK legislation, especially the 2005
amendments. (See Chacan-Navas 2006 C-13/05).
The case of Coleman (2008 C-303/06) confirmed that it is not necessary for
the claimant themselves to be disabled as long as disability was the basis of the
alleged discriminatory conduct. In this case it was the claimants son who was
dyslexic, and the refusal of the employer to allow some flexibility to deal with
his needs constituted unlawful discrimination. This form of associative
discrimination is now recognized in the UKs Equality Act, 2010.
Implications for HR
In terms of the major strands of discrimination law, so long as HR practitioners
are familiar with the demands of UK law they should be compliant with EU law
demands. It is unlikely that this will change in the near future. However, the
following might usefully be noted:
EU law emphasises the need to be able to clearly articulate a legitimate aim
and a proportionate and reasonable response to it if an employer aims to justify
discriminatory conduct. These aims must by carefully thought through and set
down in terms of either wide labour market policy or organisational needs.
It must be borne in mind that case-law from the ECJ is fairly recent and is not
as bedded down as UK law. The wording of the legislation and the stated policy
aims, as set out in the Preface, remain critical.
Part-time work
Homeworking/teleworking.
The reason such work patterns are covered here is that EU law has adopted an
anti-discrimination and comparator approach derived from other anti-discrim-
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ination/equal treatment laws that are long-established in the EU. This process
involves, say, comparing the treatment of a part-timer with an equivalent fulltimer. The full-timer has to be identified and the treatment carefully analysed,
though the employer has the opportunity to justify any differences in treatment.
For present purposes a typical or standard worker is an employee on a fulltime, permanent contract of employment.
Another dimension of UK practice is the incidence of the use of complex business relationships in skills supply. Examples are limited companies/ personal
service companies, umbrella companies and so-called vendor agreements with
clients whereby there is a close relationship between a client and a skills supplier
that not only provides staff but trains and inducts them, frequently on the clients
premises.
UK law
It will be recalled that from the beginnings of UK employment legislation, the
1963 Contracts of Employment Act, some groups in the labour market were
treated differently. In that Act, the right to a written statement of terms of work,
notice period, etc. was only available to part-time employees if they worked at
least 21 hours a week, and to fixed term or casual employees if they worked for
at least three months. The self-employed were fully excluded. Therefore, until
recently, atypical workers have been disadvantaged in terms of access to even
basic protective rights.
However, unlike in many European jurisdictions, there are no restrictions in UK
law on the use of either part-time or fixed term work. In the case of the latter,
the employer does not have to establish a particular short term need, though
under the Employment Rights Act, 1996, a short term contract to cover maternity leave is subject to special rules. Interestingly, under Section 95 of the
Employment Rights Act, the termination of a fixed term contract amounts to a
dismissal and it will, in principle, be an unfair dismissal if the contract is not
renewed on the same terms. The focus of UK law has, therefore, been the end
of a fixed term contract, rather than its beginning. Traditionally, there have been
no restrictions on the number of renewals of such contracts and in many occupations and sectors it has not been unusual for a series of fixed term contracts
to be undertaken by an employee lasting a decade or more.
In the same way, there has traditionally been no legislation providing specific
protective rights to either part-time or fixed term employees or workers. However,
given the high representation of women in part-time working, progress had been
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made in terms of, say, access to pensions, training and other benefits through
the operation of equal pay and sex discrimination legislation (see Section A above).
Agency working is distinctive, not just because of the unique triangular nature
of the relationship but because although temporary work agencies and businesses (i.e. the latter supplying temps) have been increasingly tightly regulated
under the Employment Agencies Act, 1973, and subsequent Regulations, there
has been no UK regulation of the employment conditions of temps themselves.
Their employment status has been determined by the agency, with a legal obligation to provide written evidence of the status that has been provided. Few
agencies have provided employee status, so temps have been unable to assert
job security or other protective rights, such as maternity rights. They can, of
course, assert workers rights, such as non-discrimination, health and safety
and the National Minimum Wage. Recently, claims have been made asserting
an implied contract of employment against the agencys client (for example,
Franks v. Reuters (2003) IRLR 423); especially where the temp has been on
a long assignment with the client and is integrated into their HR systems. However,
with the decision in James v. Greenwich Council (2008 EWCA Civ 35) this
is less likely to occur.
Homeworking has never been treated as a special employment category in UK
employment law. It has been left to contracts to deal with particular issues (insurance, security, working hours, sickness, etc.) but it has been assumed that all
employment legislation applies to those who work at or from home. This includes
health and safety. UK law treats homeworkers as ordinary employees/workers,
with only job location as a distinctive feature. Hence, the normal rules relating
to unfair dismissal, redundancy and protective rights apply.
Overall, the traditional position of atypical employment in the UK has been a
very mixed one.
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EU law
There has long been an atypical work policy agenda within the EU. Since 1983
there have been attempts to recognise their distinctive position, their problems
in gaining access to statutory and contractual rights, (relative to typical/standard employees) and their general vulnerability in the labour market.
However, it was not until the Framework Directive on Part-time Work, 1997,
(Dir 97/81), negotiated by the social partners, that legislation was in place. We
implemented this in the UK with the Part-time Workers (Prevention of Less
Favourable Treatment) Regulations, 2000.
The purpose of the Directive is to:
a)
b)
Requests to move from full-time to part-time work and vice versa should
be given consideration by employers and information on vacancies
should be supplied by the employer.
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It might be noted that the Directive is tightly drafted as regards who can benefit
from the Directive but very broad in terms of its scope. The phrase employment conditions has no definition in the Directive but appears to cover both
statutory and contractual rights. The Directive is also one of the earliest manifestations of the now well established principle of flexicurity that drives the
European Employment Strategy and employment policy more generally (see
Chapter 3). This means the law encourages flexible forms of working but provides
appropriate security for workers.
There is little to comment on here, as there have been so few cases on part-time
work from the ECJ. The reason is that many of the substantive issues around
discriminatory treatment of part-timers has been considered in relation to sex
discrimination, including access to pensions, the basis upon which they can claim
overtime etc.
The case of Wippel (2004) C-313/02 concerned Austrian workers who had
contracts that could involve intermittent working and variable hours, depending
on the employers needs. The case provided an opportunity for consideration
of the scope of the Directive. The ECJ confirmed that workers (not just
employees) are covered, and that it could apply to part-timers despite the work
being flexible and variable. They were entitled not to be discriminated against
but insofar as state legislation set upper limits for working hours in the interests of health and safety, they equally applied to part-timers.
What about access to and the basis of payment for overtime? This has been a
contentious issue within the EU, especially on the question of whether the parttimer has to work the normal full-time hours before qualifying for any enhanced
hourly payments. (The decision in 1984 in Helmig C-399/92 had suggested this
requirement was not discriminatory.) The matter has been clarified by the cases
of Elsner-Lakeberg (2004) C-285/02) and Voss (2008) C-300/6. Both cases
concerned German teachers. In the first case full-timers did 24.5 hours a week
and part-timers 15. Both had to do 3 hours unpaid overtime before qualifying
for a payment. This disproportionately impacted on part-timers.
In Voss full-timers did 26 hours a week and the part-timers up to 23. After a set
number of hours any extra hours were paid but at a lower rate. In this case it
was held that, proportionately, a full-timer has more hours at full pay before
they hit the overtime rate that was lower.
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It should be noted that all of these cases in the ECJ were brought on the basis
of equal pay/sex discrimination, not the 1997 Directive, and so there is little guidance as yet on the application of that Directive.
Case-law in the UK has broadly reflected these Directives and has upheld the
ability to claim by part-timers, even where there are some differences between
the work done by full-timers and part-timers.
FIXED TERM WORK
The non-discrimination principle was continued by the 1999 Fixed Term Work
Framework Agreement, Dir 1999-70.
However, this Directive is more complex, its adoption was highly controversial
and there had been little case-law on fixed term work in the past. The concern
of the trade union social partners during the negotiations of the Directive was
to prevent abuse. This is in terms not only of typically poorer working conditions relative to a permanent worker, but also in the successive renewal of fixed
term contracts, even where there was no objective need for them.
The background to the Directive is instructive. Across most member states (but
less so in the UK) termination of contract for conduct/performance or for
economic reasons (redundancy) is often a lengthy and expensive process. During
the 1980s and 1990s there had been considerable growth in the use of fixed term
contracts and it was thought by many that the reason was the avoidance of job
security legislation. In addition, in some states, long fixed term contracts were
being used of, say, 3 or even 5 years length. Compared with the legislation on
part-time work, that on fixed term work was not so much concerned with equal
treatment but with regulating the use of such contracts.
The difficulties inherent in gaining political agreement led to a Directive that is
more flexible than most for those implementing it in member states.
The aims of the Directive are:
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Clause 5 deals with the issues of abuse. Member states have to put
in place measures to prevent abuse and take at least one of the following:
Agency temps and casuals are expressly excluded from the Directive.
It will be recognised that the UK government opted for a limit on the number
of renewals of contracts in the Fixed Term Employees (Prevention of Less
Favourable Treatment) Regulations, 2002. The Regulations appear compliant with
the Directives demands.
A woman had been employed under a series of fixed term contracts. She became
pregnant and at the end of the contract it was not renewed. It was held that this
was not a dismissal for the purposes of maternity provisions in Spain, though
it was sex discrimination. There was no answer from the ECJ as to whether such
a non-renewal could be abuse.
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More recently, the case-law has been generated by cases from the public/civil
services of a number of states, most notably Greece. Entry to such work is often
through competition and/or very rigorous selection process. Employment conditions of tenured or staff employees are often better than those taken on for
fixed term contracts to cover short term needs etc.
ANGELIDAKI (2009) C-378/07
The Greek government sought to retain its public service processes whereby
those on fixed term contracts could, in effect, claim conversion to a permanent
public service role. However, those on fixed term contracts claimed that even
where there was sustained need for work, contracts were, by law, not being
renewed. This they said was abuse and recently their rights had reduced. This
complaint was upheld and the case returned for consideration of whether having
rules that precluded fixed term workers from permanent posts breached the
Directive. The ECJ referred the case back to require Greek authorities to ensure
that there were effective measures in Greece to prevent abuse of fixed term
workers. The ECJ also reiterated that there is no right to permanent posts where
the claimant is on their first contract!
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Temps must have access to social facilities at the client enterprise, such
as canteens, transport and child care.
They are counted for information and consultation reasons and should
be involved.
Tele/homeworking
It might also be noted that the social partners have negotiated a Framework
Agreement establishing good practice following the adoption of the Directive,
and there is an Opinion on Teleworking. The Directive also emphasises the
need to ensure comparable treatment for those that work at or from home, emphasising health and safety, social protections and the application of established
EU employment law. For us in the UK, this is not a problem, as we already apply
such rights to those who work at home.
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been on an assignment for 12 weeks will ensure only a minority of temps will
have access to the non-discrimination rights.
Despite there being little ECJ case-law, the non-discrimination principle is a strong
one.
It is vital that employing organisations:
Must have clear policies on the use of fixed term and agency temps:
Why are they used? Who makes decisions about their use? What is
the role of HR in their use?
Know the extent to which part-time, fixed term workers have access
to the full range of employee rights and benefits of full-time, permanent
workers. If part-timers and fixed term employees do not have access
to pensions, bonuses, training, etc. and are not included in consultation
processes, why is this? Is there a cogent and compelling reason for
their exclusion? Can it be clearly expressed?
What are the practices as regards the renewal of fixed term contracts?
Might practices be seen as abuse of such workers? Is the organisation
geared up for the conversion of a fixed term contract to a permanent
one? If the organisation is not inclined to renew an FTC or convert
one, are there objective justifications for not so doing? Are workers
advised of permanent vacancies?
As regards the use of temps, how is this regulated within the organisation? Are managers aware of both current legal provisions and the
new laws from the EU? What are current practices regarding access
to social facilities and is there a policy to select an agency that provides
permanent contracts of employment for temps? What are the provisions for identifying the going rate for a comparator employee at
the enterprise? Are they counted for consultation processes? Are
you sure about their protection in terms of health and safety?
More generally, is there a need to develop a policy for the use of temps
(or, indeed, atypical employment generally)? Has there been an
assessment of the impact of the 2010 Regulations and should changes
be made to current practices?
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Summary points
Although UK law and practice considers part-time/job sharing, homeworking, etc. as part of our flexible working agenda, it is important
to note that for EU law, the legal principles are based on antidiscrimination law (with all that entails).
Each pattern of working has its own definitions and rules and is treated
by law as having its own integrity, e.g. a part-timer is not a percentage
of a full-timer.
The law does not require equality with, say, full-time permanent
workers, but if treatment is different it will have to be justified.
ECJ case-law has been fairly robust in protecting the various groups
(albeit often as part of sex discrimination) and this will likely continue
as regards agency temps.
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Chapter 6
Family-friendly measures
UK law
EU legislation
Case-law from the ECJ
Implications for HRM
Summary points
E U E M P L O Y M E N T L AW A P R A C T I C A L G U I D E
Chapter 6
Family-friendly measures
Maternity rights
Parental leave
UK law
The key pieces of UK legislation are:
UK legislation has made provision for maternity rights since the Employment
Protection Act, 1975. Traditionally, the UK provisions have been fairly generous
regarding leave from work, but less generous as regards pay. Maternity rights
in the UK, by now largely influenced by EU law, are:
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More recently, the law has become more flexible as to the notice to be given on
return to work and the introduction of keeping in touch days.
Other family rights had been very limited until the introduction of two weeks
paternity leave in 2002, not paid by the employer but qualifying for, in effect, SSP,
and more generous time off rights for adoption leave. There are current
proposals to make maternity leave open to both parents and to extend paternity
leave for fathers. It might be noted that family/carer rights derived from UK
legislation are more extensive than those from the EU, especially in terms of:
Paternity rights.
EU legislation
This has, to date, been confined to maternity, parental leave and rights where
there are domestic emergencies.
The Directive of 1992 on Maternity (Dir 1992/85) is actually a health and safety
measure following the health and safety Framework Directive of 1989, though
its requirements in practice went much wider. (It might be noted that legislative proposals based on health and safety were more likely to succeed, as from
1986 they could be adopted by qualified majority voting, i.e. no member state
could veto proposals. See Chapter 2.)
Its main provisions are:
The need to assess potential risks that could prove especially harmful
to a pregnant women or her unborn child or to a woman who has
recently given birth.
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Importantly, the Directive has two Annexes that specify the health and safety
risks for pregnant women and for those who have recently given birth. These
highlight particular risks posed by chemical, physical and biological agents. Such
risks require the employer to respond, as set out above. The risks include heat,
cold, vibration, rubella, mercury, carbon monoxide, lead and also cover specific
risks such as that from working underground.
In 2008, the European Commission issued a revised draft Directive (COM 2008/
600/4) that aims to incorporate ECJ case-law, apply the Burden of Proof Directive to maternity cases, lengthen the entitlement to leave (18 weeks) and add
other rights such as the right to request flexible working. At the time of writing,
this draft is still under consideration.
Legislation on Parental Leave, 1996 Dir 1996/34 was a long time in coming!
Ideas for legislation date from 1983 when it was only for the care of very young
children. In 1996 it was the first social partner agreement following the Maastricht Treaty, 1992, between the social partners (see Chapter 2). The Parental
Leave Directives main provisions are:
The detailed rights under the Directive are up to member states, including the
question of whether the leave is paid or not, whether it can be taken full or parttime, conditions applying to access, notice periods and whether leave can be
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postponed. The UK government made full use of this flexibility in its implementing
Regulations (Parental Leave Regulations, 1999).
In addition, the Directive introduced other rights. These are grouped under Clause
3, Time off from work on grounds of force majeure. This covers urgent family
reasons in cases of sickness or accident making the immediate presence of the
worker indispensable. More specific rights than these are derived from Ss57A
and 57B, Employment Rights Act, 1996, that gives unpaid leave.
1. Maternity rights
The ECJ has been especially robust and interventionist regarding these rights.
WEBB V. EMO AIR CARGO (1994) C-32/93
The ECJ confirmed in this case that if a pregnant woman suffers a detriment
(in this case a woman was dismissed after being taken on a temporary replacement for a woman on maternity leave who also became pregnant) it is sex
discrimination. There is no need for a comparator, such as man who needs time
off for a major operation. Although the woman was initially recruited to cover
leave, it was anticipated she would stay on after the leave.
TELE DANMARK A/S (2001) C-109/00
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ECJ strongly rejected this. If a woman is refused or dismissed from employment because she is pregnant, that is unlawful discrimination.
JIMENEZ-MELGAR (2001) C-438/99
Similar approaches have been taken to the non-renewal of a fixed term contract
when it was known that the employee was pregnant. Her fixed term contracts
had been renewed in the past. The employer argued that there were other reasons
than her pregnancy for the non renewal. The ECJ held that so long as the nonrenewal was pregnancy connected she had a claim.
BUSCH (2003) C-320/01
A woman on parental leave who became pregnant wanted to end that leave early
and return to work. She did not tell her employer she was pregnant. She was
dismissed when the employer learned of the pregnancy. The ECJ held there was
no extra obligation to inform the employer the reasons for ending the parental
leave early (i.e. the pregnancy). There was unlawful discrimination.
HANDELS V. DANSK (1989) C-109/88)
The ECJ confirmed that if a woman is on sick leave etc. connected with pregnancy after returning from maternity leave, the employer does not discriminate
unlawfully if she is dismissed on capability grounds. This is so long as a man
who had a comparable absence record would also have been dismissed. This
is in line with other cases that have confirmed that the right not be discriminated against can only be claimed during the protected period, i.e. the statutory
maternity leave period after the birth.
MERINO GOMEZ (2004) C-342/01
It has long been accepted by law that to reduce the rights of a woman on maternity leave, fail to pay her pay rises, ignore her when promoting staff, etc. is unlawful.
This case clarified another issue, that of holiday entitlement. It confirmed that
the right to maternity leave and holiday leave are separate rights. Therefore, a
woman must be able to take holiday leave outside the maternity leave period.
PARQUAY (2007) C-460/06
A woman went on maternity leave. She had intended to return. Temporary cover
was recruited and considered very competent by the employer. The cover was
told that she could have a permanent post when the fixed term period ended.
Parquay was not informed of the termination of her own contract until after
the end of her leave. Despite being outside the legally protected period it was
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held that the preparatory steps to replace her had been taken during her leave
and the conduct was unlawful.
KIISKI (2008) C-116/06
A woman on parental leave became pregnant. She wanted to change her leave
and status to that of maternity leave and not continue with the parental leave.
There was financial advantage to her in taking maternity leave. The employer
refused, saying that he had made arrangements that could not be altered just
to accommodate her preferences. The ECJ held this to be unlawful discrimination as she was entitled to maternity rights and they could not be refused.
For a recent overview of legal principles and case-law on maternity rights see
Pontin (2009) C-63/08.
Overall, the case-law takes a very strict interpretation of legislation, though interestingly, there have been no significant cases on health and safety protections.
The decisions indicate the difficulties of denying direct sex discrimination or
justifying indirect discrimination. A strong line has been held by the ECJ.
2. Parental leave
Case-law here has been very limited. This is largely because most EU states have
parental leave provisions that are wider than those provided for in the Directive. Only one major issue has emerged, and that concerns rights when an
individual is on parental leave itself.
MEERTS V. PROOST (2009) C-116/08
This is a case from Belgium, where legislation allows parental leave to be taken
on a full-time or part-time basis. In this case leave was part-time. The claimant
was dismissed while on parental leave and entitled to compensation. However,
the legal issue was whether the rate of pay for compensation purposes was that
of the previous full-time job or that on leave. It was held that it was the latter
i.e. the individual changes their contract terms when taking leave and must then
suffer the consequences. This is broadly in line with similar UK case-law on parttime working following full-time employment.
GOMEZ-LIMON (2009) C- 537/07
Parental leave was taken on a part-time basis. Pay and social security payments
were adjusted accordingly. The woman became disabled when on parental leave.
She was entitled to a pension. However, it was based on her reduced pay and
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social security payments. The ECJ held this to be lawful and not contrary to the
Directive and also not to be sex discrimination.
Clearly, there are risks for individuals when taking leave or otherwise taking
advantage of the Directive. This appears to be in contrast to the generally highly
supportive attitude taken to the occupational benefits etc. of those on maternity
leave. This may be a reflection of the fact that parental leave is open to both men
and women?
The ECJ has been especially robust when examining the treatment of
a woman on leave. She must be treated for virtually all intents and
purposes as still being at work, e.g. informed of vacancies, promotions
and key work events, and not be denied pay rises, most bonuses where
they are automatic or at least paid proportionately where they are
based on performance and she was at work some of the time and
not have benefits withdrawn (e.g. the company car, phone, etc.).
The ECJ has provided less guidance on some of the more detailed issues,
e.g. if leave is one year or more, how, precisely, does the employer
provide holiday leave within a holiday year. Can leave be carried
over or bought out? To date, the ECJ has been equally robust in
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Summary points
The legislation in this area still leaves many key issues to national
legislation, including the length of leave (beyond the minimum) and
rate of pay. However, the EU and ECJ case-law has prescribed a
formidable list of practices that fall foul of the law and amount to
unlawful discrimination.
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Chapter 7
Freedom of movement
The UK situation
EU legislation
The legislation itself
Case-law from the ECJ
Implications for HRM
Summary points
E U E M P L O Y M E N T L AW A P R A C T I C A L G U I D E
Chapter 7
Freedom of movement
The UK situation
Traditionally, the UK labour market has been a very open market to people from
outside the UK. In part, this has been due to links through the Commonwealth,
but also to the lack of restrictions on who can perform particular work and the
lack of collective agreements and other systems to protect workers. Few jobs
are reserved for UK nationals and generally recruiters in the UK have long been
used to receiving applications from overseas, with organisations such as the British
Council providing advice, facilities and information on non-UK qualifications.
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This lack of restrictions has led to many occupations and sectors being heavily
reliant on foreign labour.
The position has generally been one of openness, flexibility and little or no legislation or practices that protect UK workers from competition. However, in recent
years, immigration controls regarding non-EU nationals have grown considerably under various pieces of legislation, most recently through the introduction
of the Points Based System, the five Tiers of migration categories and the
increasing regulation of the recruitment process by the Home Office and Borders
Agency. Similarly, increased control over students and those in the UK on work
experience has developed. Of course, this legislation cannot operate against EU
citizens or those from the European Economic Area (EEA). These are nationals
from Norway, Switzerland and Lichtenstein. The greatest impact has been on
Third Country Nationals and those who are unskilled or less skilled. There is,
therefore, a great contrast between the freedom enjoyed by EEA nationals and
by those from beyond the EEA.
EU legislation
This is a mixture of hard and soft law and the legislation has spawned a
wide range of institutions, policies and practices. This is indicative of the fact
that an open, integrated labour market is at the heart of the philosophy of the
EU, backed up by long standing programmes, such as Erasmus, Erasmus Enterprise from 2009, Leonardo and Grotius, and practices such as the introduction
of the Blue Card for migrants and the Europass for EU job applicants, especially across member states. The Lisbon Treaty, 2009, has consolidated most
of these provisions.
The major pieces of legislation are:
Art 20, that provides for free movement of self employed people
and their families
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The public service is in theory exempt, though Art 20 requires the exemption
to be interpreted restrictively, i.e. the limiting of work to home nationals should
be restricted to sensitive areas, such as security, military and senior public service
posts. It is also unlawful to fail to recognise periods spent in the public service
of other state when recruiting, rewarding staff, etc. (Commission v. Greece 1998
C-187/96)
It should be noted that the freedom of movement rights only apply to EU/EEA
citizens, and the fact that an individual from a non EEA state has worked within
the EEA does not entitle them to rely on Art 20 when applying for work in another
state. So, a Nigerian national who has worked in Italy and who wants to work
in the UK does not have Art 20 rights.
It should also be noted that with the consolidating measure of 2005, recruiters
have the responsibility to check out the qualifications of a non-national job applicant and not put the onus on the applicant.
EU law has long recognised that one of the key barriers to mobility is the failure
to accept non-nationals with qualifications not obtained from the recruiting
state. For some professions, mainly medical ones, Directives set down the specific
requirement for mutual recognition of qualifications. At an earlier stage of development, legislation was modelled on anti-discrimination; i.e. there was access
to employment in principle but excluding a non-national applicant could be
capable of justification. More recently, the emphasis has been on a right to move
freely (Commission v. Denmark (2005) C-464/02).
States are free to regulate access to trades and professions in any way they choose,
in the interests of consumer protection. However, it has been clearly decided
that the operation of the professional and other rules for qualification must not
be operated in a discriminatory manner. The EU provides lists of both academic
and vocational/professional qualifications and this indicates equivalence.
Recruiters need to be aware of these lists and the rejection of someone not having,
for example, a UK engineering or mechanics qualification is risky. It is important to recognise not just qualifications but also professional experience gained
outside the recruiters state.
It should be noted, however, that where a profession is a regulated profession (i.e. the state lays down requirements), for example, in the UK, for social
workers, school teachers, doctors and lawyers, it can be lawful to require a nonUK nationally qualified person to also undertake an aptitude test or period of
adaptation. This is recognised as a sensible safeguard and ensures professionals
are aware of the work systems and cultural factors. These provisions also apply
to professional service providers intending to operate outside their own state.
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Spain was held to be in default through its national health services failure to
recognise the three year Diplomas of hospital pharmacists obtained in other
member states. The same state was held to be in default through requiring all
air traffic controllers to be Spanish nationals. (2008 C-136/07)
LEUKEN (2008) C-197/06
This is an amusing case involving a Dutch estate agent who was qualified under
Dutch law. He wanted to set up in business just across the border into Belgium,
specialising in selling Belgian properties to Dutch clients. He was refused a right
to practice and the action was triggered by a Belgian organisation representing
estate agents. He was told that in order to practice he would have to take nine
examinations in legal subjects (even though Belgians were not required to do
all the subjects!). He won his case and the Belgian organisation was fined 3,700
euros for each breach of EU law.
PESLA (2009) C-345/08
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Individuals rejected by employers because they do not have the preferred qualification or are the wrong nationality have been the subject of a few notorious
cases.
The ECJ has held it unlawful:
K applied for a job as an optician in Greece. He had trained in Italy at the Vinci
Institute for Optical Studies. A Diploma, to be recognised, has to be awarded
by competent authorities in a member state. Here it was argued that he had
not obtained his qualification from a competent body, as Greek higher education is governed exclusively by public law that does not recognise private colleges
(independent study centres). However, the Vinci Institute (a private college) operated under a franchise from a Greek recognised college. The qualification was
equivalent and the ECJ held that he had a right to have his qualification recognised, disregarding the fact that had he studied in a private college in Greece
he would not be qualified.
RUBINO (2009) C-586/08
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This rather quiet and rarely discussed Directive has come into recent prominence and may well be subject to reform in 2010. The aim of the Directive is to
ensure that those temporarily working in another member state (host state),
having been sent (Posted) by their employer based in their home state should
not be discriminated against. Posted workers are entitled to:
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Summary points
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Chapter 8
Health and safety at work
Traditional UK position
EU health and safety law
The key Directives
Case-law from the ECJ
Implications for HRM
Summary points
E U E M P L O Y M E N T L AW A P R A C T I C A L G U I D E
Chapter 8
Health and safety at work
This is the area of employment law and practice that has been most affected
by EU law. Over forty major Directives, which have a distinctive and different
approach to the UKs traditional one, have changed the way we think about
and practice health, wellbeing and safety matters at work. As there is virtually
no recent home grown legislation, our law in this area is dominated by EU
approaches.
Traditional UK position
Health and safety legislation has long been a part of our criminal law, dating
from the first decade of the nineteenth century. The key rules of the law are not
only drawn from health and safety legislation but from several other areas of
law, including:
The law of negligence that provides victims of accidents and ill health
with compensation if caused by work activities.
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Work Premises
Work Equipment
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Manual Handling
Safety Management
That workplace and other risks are created by hazards. Hazards include
explosives, chemicals, corrosives, noise, diseases, heat and cold,
dangerous work equipment such as sawing machines and dangerous
activities such as working at height or with vibrating machinery.
Hazards can also include other people who are, for example, violent
or bullies, or who create a stressful work environment.
However, there were some controversial aspects to the EU package. The first
arose in 1993 with the inclusion of working time as a health and safety matter.
The UK government argued before the ECJ that regulating working hours was
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8 H E A LT H A N D S A F E T Y AT W O R K
not truly a health and safety matter at all (Case 84/94). The case was lost. Controversy continued to rage, this time spearheaded by other member states
angered by the UK 48 hour opt-out, enabling UK workers to personally agree
to work beyond the normal weekly limit of 48 hours. The attempted amendment
of the 2003 Directive foundered in 2008, again mainly over the opt-out.
The second controversy was over the standard of care expected of employers.
As has been referred to above, the UKs was of reasonable practicability. The
EUs legislation applied the usual civil law standard of strict liability. This imposes
liability for a breach of legislation whether or not, for example, reasonable
care/inspection/maintenance/supervision has been undertaken. The language
of a Directive is to ensure, to provide, to maintain in efficient working order,
and phrases such as the employer shall ensure that (a DSE user) is provided
with adequate health and safety training are illustrative. To paraphrase the UKs
approach, the equivalent would have said something like The employer, so far
as is reasonably practicable, shall take reasonable steps to ensure adequate
training.
In 2005 the European Commission commenced proceedings in the ECJ, arguing
that the reasonable practicability test was inadequate. The UK had retained
this approach in some, though not all, Regulations to implement the EU Directives. The case was lost. It should nonetheless be noted that several of our key
Regulations do anyway apply strict liability. The Work Equipment Regulations
and Personal Protective Equipment Regulations broadly apply the strict test.
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E U E M P L O Y M E N T L AW A P R A C T I C A L G U I D E
The list illustrates the principle of EU health and safety law that the greater
the risk the greater the protection, in that vulnerable people are singled out
for their own Directive!
In recent years there has been little new legislation. Mostly it has been a case
of reviewing and amending existing Directives. An interesting example of this
process occurred recently. The Commission wanted to revise the regulation of
working hours of commercial vehicle drivers. It proposed that the new measures would differentiate between employee drivers and owner (self-employed)
drivers. When debated by the European Parliament the measure was voted down.
The MEPs stated that tired drivers, whether employees or not, were capable of
causing death on the roads and the new regulated hours should apply to all!
This response by the Parliament, whereby it looks more broadly and perhaps
differently at legislative proposals, may be a foretaste of the future of EU employment law-making, following the coming into force of the Lisbon Treaty in
December 2009.
In 1995, following the Commissions Fourth Action programme on Safety Hygene
and Health at Work (COM(95) 282), the European Agency for Safety and Health
was set up in Bilbao, Spain. Two things flowed from this. First, there was a separation of health and safety policy development from the Commission. Some say
that this has led to a loss of momentum and a downgrading of health and safety
issues. Second, there has been a move away from hard law measures, such
as Directives, towards soft law measures such as Recommendations and other
persuasive techniques. An example of soft law is the Recommendation on Stress
at Work, which adopts a much broader approach to that of the Management
Standards on Stress in the UK produced by the Health and Safety Executive.
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8 H E A LT H A N D S A F E T Y AT W O R K
Here it was successfully alleged that Italian legislation had failed to require
employers to provide for and support designated and qualified employees with
health and safety responsibilities.
COMMISSION V. GERMANY(2002) C-5/00
This concerned the failure of German legislation to require written risk assessments for all employees.
COMMISSION V. UNITED KINGDOM (2007) C-127/05
This has been previously referred to and concerned the adequacy or otherwise
of the UKs reasonable practicability standard. The decision that it was adequate
leaves the UK with mixed standards, i.e. some aspects of legislation require
strict liability and others, reasonable practicability. This means practitioners need
to check legislation very carefully.
It might be added that the UKs record of implementation is a very good one
it has tended to be speedy and comprehensive.
WORKING TIME CASE-LAW
Case-law has focussed on only a few albeit highly contentious issues. They
are the nature and workings of the 48 hour opt-out, the definition of working
time itself and provision for paid holidays.
PFEIFFER (2004) C-397/01
This confirmed that the only way for an individual to opt-out is through individual and freely given consent. Collective or workforce agreements are not
adequate, nor is an agreement as a result of undue pressure.
SIMAP (2000) C-303/98
This was the first of the on-call/standby cases. It concerned hospital health
workers. The ECJ had to consider the definition of working time itself. The
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E U E M P L O Y M E N T L AW A P R A C T I C A L G U I D E
Directive speaks of time spent at the employers disposal. In SIMAP the decision was that as the staff concerned had to remain at the hospital premises they
were working when they were on-call.
Subsequent cases have provided wider definitions.
JAEGER (2003) C-151/02
Another case involving hospital workers found that they were working when
at the hospital and on-call but also when not at the hospital but having to be
available to the employer.
Other cases have confirmed that not only is being on-call working time, even
when the staff are allowed to sleep, but that time must be paid at the full rate,
not, say, at the level of a minimum wage.
As regards paid holidays, the ECJ has been equally robust.
FEDERATIE NEDERLANDSE VAKBEWGIG (2006) C-124/05
This case confirmed that pay in lieu of untaken holidays is not permitted, so to
avoid contravention of the Directive employers should ensure leave is taken.
The case also limited the ability of employers to carry over leave from one
year to the next. The law is not entirely clear but it is best to be cautious and
aim to have everyone take their leave within the holiday year.
ROBINSON-STEELE (2006) C-131/04
This case dealt with the thorny question of rolled-up holiday pay into ordinary pay. The employer argued that as the pay contained an extra element it
would enable the workers to take breaks from work. The ECJ disagreed. In reality,
in not providing paid holidays as a separate item, the rolling up deters people
from taking holidays and was contrary to the Directive.
BECTU (2001) C-173/99
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8 H E A LT H A N D S A F E T Y AT W O R K
A further important issue is currently before the ECJ. This covers the amount
of holiday pay. Does it include allowances, eg for subsistence as well as basic
and enhanced pay? It might be noted that it is likely that during 2010 a further
attempt will be made to amend the 1993 Directive. The failed attempt in 2008
had aimed to increase the flexibility of the Directive and to deal with the thorny
question of pay for standby/on-call work. The stumbling block to change has
always been the 48 hour opt-out. There may be a way in which that issue can
be de-coupled from the other non-contentious reforms but we shall have to
see. It might also be noted that many aspects of the Directive have anyway proved
uncontroversial, such as the regulation of night work and occupational health
support for night workers.
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8 H E A LT H A N D S A F E T Y AT W O R K
The EU law places special emphasis on co-operation and coordination where workplaces are shared, where several employers
are engaged in a project and when staff are supplied through an
intermediary employer, including an outsourcing company. The EU
recognises that these situations are often high risk as it is left unclear
who is responsible for what and when hazardous activities will take
place, such as demolition, re-wiring, etc. Legislation covering agency
working has also emphasised the need for effective communication
and liaison between the client and the agency. It is vital that HRM and
Occupational Health specialists are a part of this process of effective
co-operation and co-ordination.
Summary points
It unlikely that there will be many major changes to the legal structure
and in any event UK legislation is generally sound and advice freely
available.
HRM needs to be aware of the key rules and approach from the EU,
even though the organisation has specialist support.
It is possible that the health agenda more generally will have increasing
impact, health and safety law will move ever closer to EU consumer
law and that aspects of public health and the law itself will become more
interventionist.
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Chapter 9
Making business changes
UK traditional approaches to change
EU legislation
Case law from the ECJ
Acquired rights/transfer of undertakings
ECJ case-law
Implications for HRM
Summary points
E U E M P L O Y M E N T L AW A P R A C T I C A L G U I D E
Chapter 9
Making business changes
This has been, at times, one of the most fast moving and contentious aspects
of EU law. The law has evolved during various recessions, periods of restructuring and development and more recently as a response to increasing global
challenges to employment in the EU. This has been typified by the relocation
of many jobs to lower wage/labour costs economies and through the off-shoring
of many business services.
Within the EU, the accession in 2004 of several former Communist states has
put some pressure on well paid jobs and on the traditional European Social Model,
which is based on stable, well managed jobs providing security and good rewards.
The need for the EU to be productive and competitive has inevitably led to the
review of some practices and previous certainties. Industries, such as mining,
shipbuilding and much of agriculture, have declined, with a current emphasis
on knowledge industries, the service sectors, high quality products and,
increasingly, for workers to be flexible and adaptable. The European Employment Strategy (EES see Chapter 3) has aimed to remove obstacles to job creation,
sought high labour market participation, efficiency and competitiveness and introduced measures to encourage the sharing of best practice through the Open
Method of Co-ordination.
All these changes have put considerable strain on the law-making process itself.
Some policy makers call for fewer regulations, more flexibility and less traditional employment protections, especially for job security. They point to the
success of the so-called Golden Triangle in Denmark, which makes changes and
job losses relatively easy for employers. The state then provides generous social
security payments to those who have lost their jobs which can be forfeited if
the worker does not take up the retraining packages designed to get them back
into (different) work.
Other policy makers see the removal of legal protections for workers, especially those that are anyway vulnerable, as leading to a race to the bottom,
with an increasing percentage of the workforce trapped in low skill, low paid
jobs or unemployment. They highlight the very high levels of both youth (<25
years) unemployment in many states and the growing numbers of long term
unemployed.
108
In this cauldron are several EU measures designed to protect workers faced with
change. Some were explicitly introduced to weaken resistance, or lessen the likelihood of industrial action. Now the key policy driver is to support recovery out
of recession with the development of appropriate legal measures. There are many
ideas for how this is best done and a recent example of thinking on the matter
is The Future of the EU 20/20 Strategy (2009) (COM) 647 final. The role of
employment law lies at the heart of these debates.
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E U E M P L O Y M E N T L AW A P R A C T I C A L G U I D E
EU legislation
Works Council Directive, 1994 Dir 94/45 Amended 2009 Dir 2009/
38
These Directives, aside from the one on Insolvency, emphasise the need for information and consultation with worker representatives before decisions are taken
and implemented. The Directives were introduced not only in the interests of
good employment relations but mainly as harmonising devices essential to the
110
functioning of the internal market. Until legislation, there were wide variations
in the approach of member states to regulating the change process.
There are said to be three basic models of employment relations within the EU.
The first is the Anglo-Irish one of little state intervention, with the working of
individual employment contracts being paramount. The second is the Nordic
model, again with little state intervention but with much left to collective labour
relations. The third is the Romano-Gallic model, which is dominated by state
intervention and regulation, including through the provision of protective employment rights. These major differences, that ensure the relative ease or difficulty
of mergers and acquisitions etc., were seen as distorting competition. Perhaps,
in view of the differences, the EU could only realistically set down minimum
standards and leave considerable discretion to member states as to how the Directives were transposed. Perhaps surprisingly, in view of our prior legal position,
the UK transpositions have been some of the most assiduous and demanding!
The Insolvency Directive will not be dwelt on. It requires member states to establish guarantee institutions to meet otherwise unmet claims by workers
affected by the closing down of a workplace, perhaps through the intervention
of tax authorities. The failure of states to do this led to the famous decision by
the ECJ in Francovich v. Italian Republic (1991) C-9/90 that confirmed an individual right to compensation from the state. The only other legal issue of note
is clarification of insolvency rights where a claimant works in one state but lives
in another. In these circumstances a claim is made in the work state. (Everson
(1999) C-198/98)
The Collective Redundancies Directive requires:
That the rights are triggered where there are proposed redundancies
of up to 20 over a period of 90 days or up to 30 over 30 days.
The rights arise where dismissals are contemplated not related to the
individual workers concerned.
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The consultations have to take place with a view to reaching agreement and in good time.
The Directive requires information and consultation but not negotiation or, indeed,
agreement. The legislation is designed to manage the redundancy process not
to prevent it or significantly slow it down. Failure to comply with the duties can
lead to payments to staff affected but will not nullify the decision to dismiss. Most
commentators consider this Directive to be a weak measure. However, the ECJ
has been robust in its demands regarding those duties on employers that require
action.
The ECJ confirmed in this recent case that information and consultation must
take place before a decision is made, let alone implemented. In this case the Dutch
parent company of a Finland-based subsidiary wanted to relocate work from
Finland to Germany. A number of issues were contested. The first was whose
responsibility it was to comply with the Directive. The ECJ held that it was not
the parent company but the company on the ground, as it were, that had the
duty to consult. The second issue was timing. The employer argued that as there
were a number of uncertainties about the move to Germany and what the precise
outcome was likely to be, they did not have to consult until matters were clear.
No, said the ECJ. As soon as an employer contemplates job losses consultations should commence.
Other cases have confirmed:
112
Overall, there have been relatively few cases in the ECJ on collective redundancies. This is probably because there are few definitional issues and local law still
has key roles to play.
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E U E M P L O Y M E N T L AW A P R A C T I C A L G U I D E
applied a wide interpretation of rights, for example, providing for the transfer
of any outstanding obligations to employees transferred, not just terms of work.
It might also be noted that in transposing the 2001 Directive in terms of
outsourcing, the UK has provided the widest possible application of the legislation to even very short term or limited service contracts.
The major duties on employers under the Directives are:
To inform and consult, in good time, where changes are proposed (Art
7).
Not to dismiss workers in connection with a transfer, whether transferor or transferee (Art 4). The dismissal is then unfair unless for an
economic, technical or organisational reason involving a change to
the workforce.
The transferee must accept the workers affected, along with their
acquired rights (Art 3).
ECJ case-law
Case-law has generally dealt with different issues than those under the duties
set out above. The major topic for litigation has been: what is a transfer? We
know there must be a change of ownership, not just shares, and that the transfer
must concern a stable economic entity. This, in turn, must comprise an organised grouping of resources, clearly including human resources. In terms of the
application of these tests, there had been a long running debate as to whether
you focus on changes to the assets both physical and human or whether you
focus on the integrity of the business or part of it i.e. is it broadly doing what
it did before?
The case that set the tone and appears now to set the approach in both UK caselaw and the ECJ is that of Spijkers(1986) C-24/85). The ECJ stated that the
question was whether, under its new ownership it retains its identity, in as much
as it is a transfer as a going concern?
114
This is a case on the application of the ARD to outsourcing. The case concerned
a change of contract to provide catering services to a hospital. Sodexho took
over the contract and intended to continue to use the hospital facilities for catering,
as the previous supplier had. Sodexho refused to take on any of the catering
staff previously employed by the former catering contractor. Sodexho argued
it was not a transfer, as it had not taken over any of the former contractors assets.
The ECJ disagreed. It stated that catering requires considerable assets (supply
of power, premises, cooking equipment, etc.) and held there was a transfer such
that Sodexho was obliged to take on the staff.
As mentioned above, UK case-law has generally followed this approach where
there are assets, but where work is labour intensive and there is a contract to
supply services, the approach has generally been to ask whether there was a
stable entity with dedicated resources and whether the new service provider
carried on work much as before. Case-law has dealt with hostel provision,
training, care services and the like, as well as professional services, such as for
law and finance. Cases such as these have not surfaced in the ECJ to date.
Other ECJ case-law of interest includes:
NY MOLLE KRO (1987) C-287/86
This case confirmed the wide application of the Directive, as it held that a transfer
can occur through leasing or the recission of a lease.
SOPHIE REDMOND (1992) C-29/91
This case concerned the provision of services for a drug rehabilitation centre.
The ECJ held that the ARD applied not only to the provision of professional services but to services provided to the public and charity sectors.
SUZEN (1997) C-13/95
This case confirmed that the ARD applies to second generation transfers and
to contracting-in.
SCHMIDT (1994) C-392/92
The case concerned the change of a service provider for cleaning. There was
only one worker involved but that did not prevent the transfer rules applying.
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E U E M P L O Y M E N T L AW A P R A C T I C A L G U I D E
The European Works Council Directives, 1994 (Dir 94/45) and 2009
As mergers, acquisitions and other business changes and new employment strategies across national borders have become a growing feature, no doubt helped
by the freedom to move capital, goods and services within the Single Market,
it was inevitable that there would be calls for some worker protections. EU multinationals are a major feature today, such that key decisions are made well away
from individual factories, offices and retail outlets. Some high profile dismissals
by fax, sent from a parent company, requiring staff to leave by the end of the
next day, hit the headlines. As did sudden closures of workplaces by well known
companies, such as Marks and Spencer (closing most European shops outside
the UK) and Renault (sudden closure of manufacturing plants). The calls were
for effective information and consultation facilities that would enable representatives from all the plants/outlets, etc. in different member states to consider
the implications of high level business decision-making.
Works Councils are a feature of France and Germany, in particular. They are
consultative bodies that meet at regular intervals and have wide powers to require
amendment to workforce plans or even cancellation. Other countries have no
equivalent and it was unthinkable that the so-called Franco-German model could
be applied across the EU. So, the 1994 Directive required EU multinationals,
defined as Community scale undertakings with at least 1000 employees in the
EU and at least 150 in two member states or more, to set up a European Works
Council (EWC). The model is of a controlling enterprise and controlled undertakings. They have to voluntarily set up a Works Council or have the Works
Council format attached to the Directive applied to them.
By 1996, 386 agreements had been made, including 58 by UK companies.
Following a review of their workings, a revised Directive was adopted in 2009.
There had been concerns about the somewhat formalistic nature of meetings,
that representatives were not sufficiently representing employee views and about
whether the EWCs deliberations fitted well with the other EU legislation on
restructuring and change.
The key requirements of the legislation (including the 2009 update) are:
116
The EWC does not have competence to deal with all workforce issues
only those with a transnational element. This is an issue that affects
the enterprise as a whole or at least two undertakings in two member
states.
The need for EWCs to link with national representative bodies, e.g.
in the UK the Trades Union Congress.
The object of the EWCs is to aim for an orderly approach to business changes,
in a context where a decision affecting country A will likely affect employees in
country B. In recent years growing importance has been attached to matters
such as outsourcing, use of agency temps, posting of workers and increased
forms of flexible working.
There are varying views as to the value and success of EWCs, but many managers,
including from the UK, do speak enthusiastically about the experience of sharing
different traditions and practices, working to avoid bad outcomes, working
in a co-operative rather than confrontational manner and effective problem
solving. Working on and for an EWC appears quite a specialised role but should
also be one that involves HRM.
There is no significant case-law.
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E U E M P L O Y M E N T L AW A P R A C T I C A L G U I D E
employment and employability. The Directive is particularly relevant to the adaptability aspect of the EES, i.e. where job changes are likely to occur. The Directive
applies to all undertaking with 50 or more employees and requires employers
to set up structures for information and consultation that, importantly, cover
all employees, including managers. There are technical requirements for workforce agreement to the proposed procedures, that the agreement be in writing
and, importantly, it is complied with.
Again, there have been no significant cases on this Directive. However, when
one combines the requirements of ARD, the Collective Redundancies Directive,
the Information and Consultation Directive and, for some employers, the EWC
Directive, this is a wide-ranging legal agenda. It is also backed up by the European Company Statute, (Regulation 2057/2001), which is beyond the scope of
this book, but has also the objective of employee involvement in the process of
change.
118
The need to recognise the breadth and complexity of this agenda. There
are enforcement mechanisms for failure to comply and although in
recent times pressure may have receded in the context of recession,
etc., there is always a risk of challenge and systems need to be checked
for compliance.
Summary points
This is an important area of EU law with clear objectives but less clear
strategies and rules.
119
Chapter 10
Helpful sources
1. Websites
2. Books and articles
E U E M P L O Y M E N T L AW A P R A C T I C A L G U I D E
Chapter 10
Helpful sources
1. Websites
http://ec.europa.eu/employment_social/index_en.html (European
Commission DG for employment)
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10 HELPFUL SOURCES
Barnard, C, and Scott, J (eds) (2002), The Law of the Single Market:
Unpacking the Premises, Hart Publishing
Hervey, T, and Kenner, J (eds) (2003), Economic and Social Rights under
the EU Charter of Fundamental Rights, Hart
Shaw, J (2000) (ed), Social Law and Policy in an Evolving European Union,
Hart
123
ISBN: 978-185418271-5
What are the chances of either you or your employees breaking the law? This briefing explains clearly:
ISBN: 978-185418397-2
Corporate Governance
Martin, David
125
ISBN: 978-185418630-0
Ribeiro, Robert
NEW EDITION
85
NEW EDITION
Singleton, Susan
125
ISBN: 978-185418632-4
ISBN: 978-185418354-5
www.thorogoodpublishing.co.uk
95
ISBN: 978-185418286-9
Brazell, Lorna
159
ISBN: 978-185418174-9
ISBN: 978-185418054-4
80
ISBN: 978-185418146-6
Fully up-to-date with all changes to the law, this briefing is a thorough explanation of the law combined
with expert guidance on negotiating and drafting the
best contract for your client.
95
ISBN: 978-185418018-6
ISBN: 978-185418285-2
HOW TO ORDER
DesForges, Charles
ISBN: 978-185418367-5
This valuable briefing explains what all the new legislation, directives and regulations mean in practice
and what you need to do to stay within the law. Recent
far-reaching changes to the law and practice affect
everyone commerce and industry, central and local
government and householders.
95
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80
Boyce, Tim
69
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ISBN: 978-185418164-0
89
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This briefing offers the tools and techniques for company-wide analysis and is essential reading for
business leaders responsible for corporate performance. Its purpose is to put minor issues into
perspective and discourage the use of quick fix solutions for bigger problems.
95
IT Governance
Norfolk, David
95
ISBN: 978-185418371-2
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99
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Grundy, Tony
Batchelor, Paul
99
80
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95
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FINANCE
Trade Secrets of Business Acquisitions
Pearson, Barrie
95
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Written for business owners and managers, this special briefing offers expert advice on the tax
implications of your business decisions guiding you
in making the right business and personal choices
for tax reduction.
145
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145
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149
ISBN: 978-185418307-1
EMPLOYMENT LAW
Data Protection Law for
Employers 2008
Singleton, Susan
NEW EDITION
125
ISBN: 978-185418626-3
The four-part Code of Practice under the Data Protection Act 1998 on employment and data protection
places a further burden of responsibility on employers and their advisers. The Data Protection Act also
applies to manual data, not just computer data, and
a tough enforcement policy was announced in October 2002.
ISBN: 978-185418281-4
55
ISBN: 978-185418339-2
95
Many executives see employment law as an obstacle course or, even worse, an opponent but it can
contribute positively to keeping employees fit and
productive. This briefing will show you how to get
the best out of your employees, from recruitment to
retirement, while protecting yourself and your firm
to the full.
This Briefing will help you to understand the key practical and legal issues, achieve consensus and
involvement at all levels, understand and implement
TUPE regulations and identify the documentation that
needs to be drafted or reviewed within the context
of a merger, acquisition or disposal.
85
ISBN: 978-185418303-3
95
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Pope, Chris
Hunt, Dennis
95
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Williams, Michael
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Williams, Audrey
95
ISBN: 978-185418253-1
By applying the range of practical management techniques detailed in this briefing, you can provide the
authority and means to empower in a way that substantially reduces the dangers.
Flexible Working
Williams, Audrey
95
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HOW TO ORDER
Web: www.thorogoodpublishing.co.uk
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85
ISBN: 978-185418183-1
Internal Communications
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Jupp, Stephen
99
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Transforming HR
Hunter, Ian and Saunders, Jane
95
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Scott, Simon
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Buildings can be rebuilt, IT systems replaced, people can be recruited, but a reputation lost can never
be regainedThe media will publish a story you
may as well ensure it is your story Simon Taylor.
News is whatever someone, somewhere, does not
want published William Randolph Hearst When a
major crisis does suddenly break, how ready will you
be to defend your reputation?
99
99
ISBN: 978-185418083-4
99
ISBN: 978-185418240-1
ISBN: 978-185418120-6
professionals who wish to sell their services successfully and to feel comfortable doing so.
95
Develop PR, brands and relationship management as the vanguards of your corporate
reputation
stakeholders
95
ISBN: 978-185418089-6
ISBN: 978-185418388-0
This is very much a how to briefing. After reading those parts that are relevant to your business,
you will be able to compile a powerful customer plan
that will work within your particular organisation
for you. Charts, checklists and diagrams throughout.
95
ISBN: 978-185418175-6
95
ISBN: 978-185418235-7
99
ISBN: 978-185418019-3
99
ISBN: 978-185418179-4
99
ISBN: 978-185418225-8
95
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Title
ISBN
Price Authors
978-185418271-5 169
Ribeiro, Robert
978-185418397-2 169
Ribeiro, Robert
Corporate Governance
978-185418354-5 85
Martin, David
978-185418256-0 80
Singleton, Susan
978-185418347-7 95
Singleton, Susan
978-185418286-9 95
Attree, Rebecca
978-185418174-9 95
OMeara, Barry
978-185418146-6 80
Bond, Robert
978-185418018-6 95
Chapman, Colin
& Hopper, Dennis
978-185418285-2 95
DesForges,
Charles
978-185418054-4 159
Brazell, Lorna
978-185418367-5 80
Hand, Caroline
978-185418331-6 80
Singleton, Susan
978-185418230-2 99
Brelade, Sue
& Harman, Chris
978-185418170-1 89
OConnor, Carol
978-185418276-0 95
Boyce, Tim
978-185418164-0 69
Boyce, Tim
IT Governance
978-185418371-2 169
Norfolk, David
978-185418099-5 99
Tiffin, Ralph
978-185418257-9 95
Boyce, Tim
978-185418250-0 99
Grundy, Tony
978-185418208-1 80
Batchelor, Paul
978-185418194-7 95
Dowden,
Malcolm
978-185418334-7 95
Hughes, Peter
978-185418321-7 145
Pearson, Barrie
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Title
ISBN
Price Authors
978-185418366-8 145
Pearson, Barrie
978-185418307-1 149
Buss, Tim
978-185418283-8 80
Singleton, Susan
978-185418339-2 55
Martin, David
Effective Recruitment:
A practical guide to staying within the law
978-185418303-3 85
Leighton, Patricia
& Proctor, Giles
978-185418281-4 95
Howard, Gillian
978-185418363-7 95
Ryley, Michael
978-185418353-8 95
Pope, Chris
978-185418267-8 95
Hunt, Dennis
978-185418253-1 95
Williams, Audrey
978-185418376-7 95
Hunt, Dennis
978-185418084-1 95
Williams, Michael
Flexible Working
978-185418306-4 95
Williams, Audrey
978-185418183-1 85
Grundy, Tony
Internal Communications
978-185418149-7 95
Farrant, James
978-185418008-7 95
Thomas, Mark
978-185418169-5 99
Jupp, Stephen
978-185418176-3 99
Araoz, Daniel
978-185418296-8 95
Phillips, Annelise;
Player, Tom &
Rome, Paula
978-185418326-2 95
Bray, Tony
Transforming HR
978-185418361-3 95
978-185418192-3 99
Genasi, Chris
978-185418251-7 99
Taylor, Simon
978-185418120-6 99
Hart, Norman
978-185418083-4 99
Scott, Simon
978-185418240-1 99
Burrell, Michael
978-185418272-2 95
Qty
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Title
ISBN
Price Authors
978-185418089-6 95
Miller, Charles
978-185418175-6 95
Wynne-Davies,
Peter
978-185418179-4 99
Tasso, Kim
978-185418388-0 95
Melkman, Alan
& Simmonds, Ken
978-185418225-8 99
Knights, Kieran
978-185418235-7 95
Woodhams, Jeff
978-185418019-3 99
Imeson, Mike
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This book is essential reading for anyone who needs clear and
concise information on the practical effects of EU legislation in
the workplace. The increased mobility of workers in the EU
makes it more important than ever that EU employment
legislation is understood, implemented effectively and
businesses are compliant. All too often, people have found
EU law inaccessible and unnecessarily complex, which is why
Professor Leightons approach in this book is so refreshing
and will be valuable to so many people.
Liz Lynne MEP
Vice President of the European Parliaments Employment and Social Affairs Committee
Liberal Democrat European Employment and Social Affairs Spokesperson
Thorogood Publishing
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