Eu Plebiscite Briefing 6: A Bonfire Of Rights? Eu Utilization As Well As Equality Police Line Afterward Brexit

Professor Steve Peers

It’s been suggested that at that topographic point would hold upwardly a ‘bonfire of rights’ if the U.K. left the European Union – inwards exceptional rights relating to occupation in addition to equality. As a response, around convey suggested that the European Union has aught to practice alongside occupation in addition to equality law inwards the U.K. – that all such rights are truly home-grown.

As I volition demonstrate inwards exceptional inwards this weblog post, it is undeniably the instance that European Union law has significantly raised the degree of occupation in addition to equality rights inwards the U.K. – peculiarly as regards equality for women inwards the workplace.

My written report of all the cases reaching the European Union courtroom concerning U.K. law on these issues shows that 60% of all the European Union courtroom cases most equal handling of women inwards Great Britain resulted inwards a finding that U.K. law breached European Union law – thence raising the standards of protection for women inwards the workplace. 62% of the other cases on workers’ rights led to the same result.

As for what would come about inwards the trial of Brexit, nosotros cannot hold upwardly absolutely for certain – but a large number of the most prominent supporters of Brexit convey admitted inwards exceptional their intention to lower those standards.  

I’ll starting fourth dimension summarise the primary points, in addition to so laid out the facts inwards detail.

Summary

The European Union has non laid uniform standards on every aspect of occupation in addition to workplace equality law – in addition to it never will.  Its role, according to the Treaties, is to laid minimum standards inwards for certain areas of occupation in addition to equality law. So where the European Union hasn’t acted at all – such as on null hours contracts, merchandise spousal human relationship laws or minimum reward – Member States tin practice as they like. The blame (or credit) for the choices which the U.K. makes on those issues must instruct alone to this country’s government.

On the other hand, where the European Union has acted – such as on vacation pay in addition to equality inwards the workplace – Member States tin laid higher standards, but non lower ones. The European Union rules inwards trial laid a flooring below which Member States can’t go; but at that topographic point is no corresponding ceiling.

It’s been argued during the plebiscite that because the U.K. has sometimes adopted laws on for certain occupation or equality issues before the European Union did, the European Union thence added nothing. This declaration profoundly misunderstands the law inwards this area. Just because the U.K. seat the Equal Pay Act on the statute books before it was covered yesteryear European Union laws on equal pay for men in addition to women doesn’t hateful that those European Union laws had no added value. That’s because British laws inwards this surface area convey oft contained many exclusions or exceptions, in addition to European Union law has oft removed them.

In this weblog post, I essay that dot yesteryear looking at every unmarried ruling of the European Union courtroom concerning U.K. law on occupation or equality issues. As I noted inwards the introduction inwards 60% of cases, regarding women’s equality at work, in addition to 62% of other workers’ rights cases, U.K. law cruel below European Union standards.

In practical terms, this increased protection regarding (among other things): equal pay for operate of equal value for women; protection at operate during pregnancy in addition to motherhood leave; amend protection of pensions when an employer goes broke; in addition to extension of paid holidays to include to a greater extent than workers.

However, a important number of the relevant laws convey been targeted for removal yesteryear serious supporters of Brexit.

In conclusion, European Union law has significantly increased the degree of protection inwards a number of areas of occupation in addition to equality law. Leaving the European Union would non automatically hateful that those protections are lost, but they would no longer hold upwardly guaranteed – in addition to many of the most senior figures supporting Brexit convey expressed their intention to withdraw around of them.

Detailed analysis

The next analysis looks at (a) the primary features of European Union involvement inwards occupation in addition to equality law; in addition to (b) the prospect of the rules stemming from European Union law beingness repealed later Brexit.

Mainly the EU’s impact inwards this surface area has been inwards the cast of laws that laid minimum standards on around workers’ rights issues, in addition to on discrimination against workers on around grounds. European Union law likewise bans discrimination exterior the workplace on grounds of gender activity or race. In a lot of these areas, the U.K. had its ain laws beforehand. For instance, the Race Relations Act dates dorsum to 1965. However, at that topographic point convey been around areas where U.K. law changed because of a novel European Union law which the U.K. implemented, or because of a ruling of the European Union courts, or the U.K. courts interpreting European Union law. Influenza A virus subtype H5N1 consummate listing in addition to summary of all the relevant European Union courtroom cases is laid out inwards the Annex. Some of the fundamental cases are discussed farther inwards the primary part.

While around combat that the rights concerned anyway derive from Conventions (international treaties) agreed inside the framework of the International Labour Organisation (ILO), ILO treaties are non enforceable inwards British law. The real fact that the European Union courtroom has ruled on U.K. breaches of European Union occupation in addition to equality law proves that the existence of ILO treaties does non yesteryear itself guarantee occupation or equality law protection inwards private cases.

Employment law

The European Union does non bargain alongside every occupation law issue. In fact, it can’t. The European Union treaties dominion out whatever European Union laws on pay or merchandise spousal human relationship rights. So at that topographic point are no European Union laws on those issues, although inwards around cases the European Union has an indirect impact on these topics.  There are likewise around areas where the European Union could human action if all Member States agreed, such as rights on the termination of employment. But it is difficult to attain unanimous understanding on occupation law issues, in addition to so at that topographic point are few laws inwards these areas either.

What topics does European Union law address? First in addition to foremost, at that topographic point are a number of European Union laws on health in addition to safety. The most prominent of these is the law on working time, which guarantees a minimum amount of 4 weeks’ paid holiday. Although the U.K. had a law inwards strength on this number before the European Union law, it did non guarantee paid holidays for all workers. The European Union courtroom instance law has specified inwards exceptional that the U.K. has to ensure paid holidays for fixed-term workers (BECTU), in addition to to include allowances (Williams) in addition to commissions (Lock) inwards vacation pay.

Next, at that topographic point are European Union laws on major changes to workers’ employment contracts. In particular, at that topographic point are European Union laws on 3 issues: rights inwards the instance of bulk redundancies; rights when an occupation contract is affected yesteryear the transfer of the employer; in addition to rights when a concern goes broke.

The mass redundancies law doesn’t ban or bound the grounds for redundancies, or render for rules on redundancy payments – so the U.K. in addition to other European Union countries tin regulate those issues even so they desire to. First in addition to foremost, this law it sets out a waiting menstruum before large numbers of redundancies tin hold upwardly made, i time the employer has decided inwards regulation to brand a lot of its workers redundant. The employer must give a detailed explanation of its plans to the workers who are laid to lose their jobs. During the waiting period, the workers’ representatives in addition to the employer must grip discussions alongside a sentiment to helping as many affected workers as possible, for instance yesteryear saving jobs or retraining. If the employer fails to practice this so at that topographic point must hold upwardly around cast of sanction.

The European Union courtroom has ruled that the U.K. had non applied this law properly when it said that employers only had to consult the workforce when at that topographic point was a merchandise spousal human relationship recognised yesteryear the employer. This was a breach of the European Union law because that law required workers to hold upwardly consulted most bulk redundancies whether at that topographic point was a merchandise spousal human relationship representing the workforce or not, in addition to whether the merchandise spousal human relationship was recognised yesteryear the employer or not. Also the U.K. had non provided plenty of a sanction for employers who breached the law. While employers were inwards regulation dependent acre to a fine for breaking the law, they could deduct it from the redundancy payments which they had to pay to workers anyway.

If a business goes broke, European Union legislation provides that a minimum amount of workers’ dorsum pay which may hold upwardly owing at the fourth dimension of insolvency has to hold upwardly guaranteed. This law likewise requires a basic protection of occupational pensions where businesses instruct broke. The fundamental European Union courtroom instance of Robins said that the U.K. was non doing plenty to protect pensions inwards such cases. British law was changed as a result.

Another number addressed yesteryear European Union law is so-called ‘atypical work’. This refers to operate which is dissimilar from the traditional full-time open-ended contract alongside i employer. In particular, at that topographic point are dissimilar European Union laws for 3 types of atypical work: part-time work, fixed-term operate in addition to means workers. There are no European Union laws on ‘zero-hour’ contracts or internships, however.

Basically these European Union laws say that the atypical workers who are covered yesteryear them should hold upwardly treated as alongside regular employees as regards their pay in addition to conditions. Also, employers should instruct inwards easier for part-time workers or means workers to bring together the regular workforce, in addition to for full-time workers to switch to part-time operate if they wish.  For fixed-term workers, at that topographic point must hold upwardly limits on the number of times a contract tin hold upwardly renewed over in addition to over, to protect against exploitation.

Finally, around other number addressed yesteryear European Union laws is worker consultation in addition to information. There is both a full general law on worker consultation in addition to data inwards large companies, in addition to a specific laid of rules of ‘European plant councils’, which applies to multinational companies alongside over one k employees across the EU. These laws let the employers in addition to the workforce to attain alternative arrangements if they wish. There are no European Union rules requiring minor businesses to inform in addition to consult their workers, except inwards the special instance where the employee contracts are transferred.

Discrimination law

There are European Union laws banning discrimination on 6 grounds: sex, race, age, disability, religion in addition to sexual orientation. The laws on gender activity in addition to race discrimination instruct beyond employment, in addition to likewise ban gender activity or race discrimination inwards access to goods or services, similar insurance. However, the laws on the other 4 grounds only extend to discrimination inwards employment.

These laws ban straight discrimination, ie discrimination purely based on someone’s age, race, sex, etc. However, they likewise ban indirect discrimination: unequal handling for another reason, but which by in addition to large affects people of a exceptional age, sex, etc. For instance, unequal handling of part-time workers volition touching on both manlike somebody in addition to woman somebody workers, since at that topographic point are around men working part-time. But it mostly affects women, since they brand upwardly the bulk of part-time workers. So it would hold upwardly an instance of indirect gender activity discrimination, although since the adoption of an European Union law devoted to the number of part-time workers (see higher upwardly inwards this chapter), the gender activity discrimination angle is no longer as relevant.

 

How practice these laws touching on the UK? As noted above, the U.K. commonly had laws on these issues before the European Union did. However, the European Union laws convey had an impact on around of the details that are of import to large numbers of private cases.

Looking at the instance law of the European Union court, at that topographic point convey been of import rulings which improved U.K. standards inwards exceptional on:

equal pay for operate of equal value;

prohibiting the dismissal of women before than men due to retirement historic menstruum difference;

effective remedies (removing the cap on damages for gender activity discrimination);

dismissal due to pregnancy;

equal handling later returning from motherhood leave; in addition to

dismissal of transsexuals.

Effect of Brexit

Leaving the European Union has no automatic trial on occupation law. But a number of Brexit supporters, including cabinet ministers similar the occupation minister, convey specifically stated that they desire to occupation the chance that Brexit would create inwards lodge to withdraw protections guaranteed yesteryear European Union law.

In particular, inwards their ain words, they aspire to scrap the laws on:  collective redundancies; atypical workers; working fourth dimension (including paid holidays); driving fourth dimension limits for the self-employed; rights for important workers in addition to women on motherhood leave;  in addition to worker consultation rights.

For his part, Nigel Farage has argued that women who convey children are ‘worth less’ to an employer.

It should hold upwardly noted that changes similar these would non fifty-fifty convey to instruct through as an Act of Parliament – Vote Leave supporters conception to fast-track the abolition of European Union laws later Brexit.

Conclusion

As nosotros convey seen, European Union law has had a demonstrable impact on U.K. occupation in addition to discrimination law. It is non the origin of all U.K. law but it definitely provides protection which would non otherwise be inwards for certain areas, such as vacation pay in addition to equality for women inwards the workplace. It is highly likely, based on the expressed intentions of senior supporters of Brexit, that at that topographic point would hold upwardly a ‘bonfire’ of around of these rights later Brexit.

Further reading:

Analyses of European Union trial on U.K. occupation law by:

Sean Jones, occupation law QC

Martin Ford, occupation law QC

European Union occupation law legislation

European Union gender activity equality legislation

Other European Union equality legislation

European Union Court website

Barnard & Peers: chapter 20

Photo credit: jerseyeveningpost.com

Annex

European Union courtroom cases: U.K. occupation in addition to equality law

The next is a listing of all European Union courtroom cases involving U.K. occupation in addition to equality law. I convey grouped them yesteryear theme in addition to indicated for each instance what the dependent acre affair was, in addition to whether the U.K. law was inwards breach of European Union law or non inwards each case.

Equality at operate – 32 breach, 23 no breach: breach of European Union law inwards 55% of cases

(Sex equality: 32 breach, 21 no breach: breach inwards 60% of cases)

Burton – no breach – gender activity discrimination – voluntary redundancy

Garland – breach – fine art 119 – after-work practice goodness

Jenkins – breach – fine art 119 – part-time operate

Worringham – breach – fine art 119 – pension contributions

McCarthys – breach – fine art 119 – previous employee

Commission v U.K. – C-165/82 breach – gender activity discrimination - private household, minor business

Commission v U.K. – C-61/81 breach – fine art 119 – undertaking classification

Johnston – breach – gender activity discrimination – women on police line force

Marshall – breach - gender activity discrimination – dismissal at retirement historic menstruum

Roberts – no breach – pension historic menstruum gender activity discrimination

Newstead – no breach – pension contributions

Drake – breach – social security directive

Clark – breach – social security directive

Barber – breach – fine art 119 in addition to occupational pensions 

Foster – breach - gender activity discrimination – dismissal at retirement historic menstruum

Johnson – no breach - social security directive

Jackson in addition to Cresswell – no breach – income back upwardly in addition to gender activity discrimination

Ex parte EOC – no breach - social security contributions

Smithson – no breach – social security in addition to housing benefit

Neath – no breach - actuarial benefits in addition to occupational pensions

Thomas – breach – social security in addition to invalidity pension

Marshall II – breach – limits on compensation for gender activity discrimination

Coloroll – breach - occupational pensions

Enderby – breach – Art 119

Birds Eye – no breach - occupational pensions

Bramhill – no breach – social security

Johnson – no breach – social security

Smith v Avdel – breach - occupational pensions

Webb – pregnancy dismissal – breach

Gillespie – fine art 119 in addition to motherhood leave of absence – no breach

Graham – social security – no breach

P v Cornwall CC – transsexual dismissal – breach

Richardson - social security – breach – prescription charges

Atkins - social security – jitney concessions - no breach

Meyers – gender activity discrimination in addition to household unit of measurement credit – breach

Sutton – social security in addition to involvement – no breach

Magorrian – fine art 119 – breach – fourth dimension limits

Levez – gender activity discrimination – breach – remedies

Grant – gender activity discrimination – no breach re sexual orientation

Boyle – pregnancy – breach inwards occupation

Brown v Rentokil – pregnancy dismissal – breach

Sirdar – women inwards state of war machine – gender activity discrimination – no breach

Coote – gender activity discrimination – breach - remedies

Seymour-Smith – gender activity discrimination – no breach

Preston – gender activity discrimination – breach

Hepple – social security – no breach

Taylor – social security – breach – wintertime fuel

KB – transexuals in addition to pensions – breach

Allonby – equal pay – (mostly) no breach

Alabaster – motherhood leave of absence in addition to pay ascent – breach

Cadman – fine art 119 – no breach

Richards – transsexual in addition to pension - breach

Coleman – disability discrimination – breach

Age Concern – historic menstruum discrimination – no breach

CD – surrogate mothers in addition to motherhood leave of absence – no breach

Employment law: xiii higher standards, seven no breach, 1 lower standard: 62% higher standard

Comm v U.K. – breach – collective redundancies

Comm v U.K. – breach – TUPE

Everson – insolvency – breach

Allen – TUPE – breach

BECTU – working fourth dimension in addition to fixed-term operate – breach

Bowden – working fourth dimension in addition to carry operate – no breach

Martin – TUPE in addition to early on pensions – breach

Celtec – TUPE in addition to transfer engagement – breach

Robinson-Steele – working fourth dimension in addition to ‘rolled-up’ vacation pay – breach

Comm v U.K. – working fourth dimension – breach

Comm v U.K. – wellness in addition to security – employer liability – no breach

Robins – insolvency in addition to pensions – breach

Stringer – working fourth dimension in addition to sick leave of absence – partial breach

Williams – working fourth dimension in addition to allowances  - breach

Nolan – collective redundancies in addition to U.S. airbase – no breach

Alemo-Herron – TUPE – breach (but instance inwards favour of employer)

Lock – working fourth dimension in addition to commissions – breach

Lyttle – collective redundancies – no breach

USDAW in addition to Wilson – collective redundancies in addition to Woolworths – no breach

O’Brien – part-time operate – breach

Greenfield – part-time operate – no breach

Viking Line – merchandise unions in addition to liberty of institution – non included inwards stats; instance left to national courtroom to decide, so settled

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