You are on page 1of 150

A Thorogood Special Briefing

EU EMPLOYMENT LAW
A PRACTICAL GUIDE

Patricia Leighton

This page is left blank intentionally

A Thorogood Special Briefing

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.

Liz Lynne MEP

Vice President of the European Parliaments Employment and Social Affairs Committee
Liberal Democrat European Employment and Social Affairs Spokesperson

Thorogood Publishing Ltd


10-12 Rivington Street

Other Titles from


Thorogood Publishing

London EC2A 3DU


t: 020 7749 4748
f: 020 7729 6110
e: info@thorogoodpublishing.co.uk

Effective Recruitment A Practical


Guide to Staying Within the Law
Patricia Leighton and Giles Proctor

w: www.thorogoodpublishing.co.uk

Patricia Leighton 2010

IT Contracts: Effective Reviewing,


Negotiating and Drafting

All rights reserved. No part of this

Rachel Burnett

stored in a retrieval system or

publication may be reproduced,


transmitted in any form or by any

Email Legal Issues: 2008

means, electronic, photocopying,

Susan Singleton

recording or otherwise, without the


prior permission of the publisher.

Freedom of Information Act


in Practice: 2008
Susan Singleton

Websites and the Law


Susan Singleton

Commercial Litigation Damages


& Other Remedies
Robert Ribeiro

Corporate Governance
David Martin

Software Contract Agreements


Robert Bond

New TUPE Regulations


Robert Mecrate Butcher

All rights reserved. No part of this


publication may be reproduced,
stored in a retrieval system or
transmitted in any form or by any
means, electronic, photocopying,
recording or otherwise, without the
prior permission of the publisher.
This Special Briefing is sold subject to
the condition that it shall not, by way
of trade or otherwise, be lent, re-sold,
hired out or otherwise circulated
without the publishers prior consent
in any form of binding or cover other
than in which it is published and
without a similar condition including
this condition being imposed upon
the subsequent purchaser.
No responsibility for loss occasioned
to any person acting or refraining

International Commercial Agreements

from action as a result of any material

Rebecca Attree

in this publication can be accepted by


the author or publisher.

Special discounts for bulk quantities


of Thorogood books are available to
corporations, institutions, associations and
other organisations. For more information
contact Thorogood by telephone on 020
7749 4748, by fax on 020 7729 6110, or
email us: info@thorogoodpublishing.co.uk

A CIP catalogue record for this


Special Briefing is available from
the British Library.
ISBN: 978 185418684 3
Printed in Great Britain
by Marston Digital

Contents
Preface .........................................................................................................vi
About the authors......................................................................................vii
List of abbreviations.................................................................................viii

INTRODUCTION

The aims of this report ................................................................................3


UK employment law ....................................................................................3
A summary ...................................................................................................6
What areas of HRM practice are most affected by
EU employment law? ..................................................................................7
Frequently asked questions (FAQ).............................................................8

LAW MAKING IN THE EU (By Richard Owen)

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

A THOROGOOD SPECIAL BRIEFING

iii

COMMERCIAL CONTRACTS LEGAL PRINCIPLES AND DRAFTING TECHNIQUES

A BRIEF HISTORY OF THE EVOLUTION AND


KEY FEATURES OF EU EMPLOYMENT LAW

27

Introduction and overview of the scope and key directives .................28


The key areas for EU legislation .............................................................29
The phases of development of law...........................................................30
Question 1 Why do we need EU employment law at all?...................31
Question 2 What are the general features of EU employment law?
How different are they from UK law? .....................................................33
Question 3 How interventionist should EU law be,
especially the ECJ? ....................................................................................34
Question 4 What about traditional collective labour relations? .......34
Question 5 Where are we now? ............................................................35
Impact of EU employment law to date ....................................................35
Impact on HR practice ..............................................................................36
A postscript the EES..............................................................................37
Question 6 Why is this of relevance to HRM? ....................................38
Summary points ........................................................................................38
The chapters on substantive areas of law ...............................................39

EQUAL TREATMENT OF MEN AND WOMEN

41

UK law.........................................................................................................42
EU law .........................................................................................................43
Key case-law on EU equal pay provisions ..............................................44
Equal treatment for men and women......................................................49

PROTECTION OF OTHER GROUPS


FROM DISCRIMINATION

55

Part A: Other protected groups ...............................................................56


Part B: Atypical/non-standard working..................................................63
Summary points.........................................................................................73

FAMILY-FRIENDLY MEASURES

75

UK law.........................................................................................................76
EU legislation .............................................................................................77

iv

A THOROGOOD SPECIAL BRIEFING

CONTENTS

Case-law from the ECJ..............................................................................79


Implications for HRM................................................................................82
Summary points.........................................................................................83

FREEDOM OF MOVEMENT

85

The UK situation ........................................................................................86


EU legislation .............................................................................................87
The legislation itself ...................................................................................88
Case-law from the ECJ..............................................................................90
Implications for HRM................................................................................93
Summary points.........................................................................................93

HEALTH AND SAFETY AT WORK

95

Traditional UK position .............................................................................96


EU health and safety law ..........................................................................97
The key Directives......................................................................................99
Case-law from the ECJ............................................................................101
Implications for HRM..............................................................................103
Summary points.......................................................................................105

MAKING BUSINESS CHANGES

107

UK traditional approaches to change....................................................109


EU legislation ...........................................................................................110
Case law from the ECJ ............................................................................112
Acquired rights/transfer of undertakings.............................................113
ECJ case-law ............................................................................................114
Implications for HRM..............................................................................118
Summary points.......................................................................................119

10

HELPFUL SOURCES

121

1. Websites................................................................................................122
2. Books and articles................................................................................123

A THOROGOOD SPECIAL BRIEFING

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!

1 The Europeanising of UK employment practices (1989) IMS Report

vi

A THOROGOOD SPECIAL BRIEFING

ABOUT THE AUTHORS

About the authors


Professor Patricia Leighton is Emeritus Professor of Employment Law and
former Jean Monnet Professor of European Law at the University of Glamorgan,
Wales, UK. She was a Professor at the College of Europe from 1997 to 2005, for
which she undertook a number of projects, in particular, dealing with the employment laws of EU applicant states. She has taught and undertaken research with
a number of educational and governmental bodies in many EU member states
and currently teaches European Law in France. She also writes on comparative aspects of law as a Visiting Academic at Monash University, Australia.
Professor Leighton also works as a consultant and trainer for CAPITA Learning
and Development, for whom she runs the PEEL Club (Personnel Experts in
Employment Law), including hosting an annual Study Visit to EU institutions and
law makers in Brussels. She also contributes to the seminars, policy development and publications of a number of organisations that support and advise flexible
workers, such as contractors and freelance workers. She is the author of several
books on employment law and contributes to leading academic and practitioner
journals. Her recent publications include Out of the Shadows: Managing Selfemployed, Agency and Outsourced Workers (2007) with M Syrett, R Hecker and
P Holland (Butterworth-Heinemann) and Effective Recruitment: A Practical Guide
to Staying within the Law (2nd Edition, 2009) (Thorogood Publishing).
Professor Leighton is a member of the European Movement.
Richard Owen, who contributed Chapter 2 of this book, is Associate Head of
the Law School at the University of Glamorgan. He is an established author in
European Law having written texts on EU Law and Tort. He also writes and
lectures for Law in a Box (www.lawinabox.tv).

A THOROGOOD SPECIAL BRIEFING

vii

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

List of abbreviations

1. Legislation and law making institutions


Art.

Article

COR

Committee of the Regions

COREPER Committee of Permanent Representatives from Member States


Council

Council of Ministers

CE

Council of Europe

Dir.

Directive

EC

European Commission

EESC

Economic and Social Committee

EP

European Parliament

LT

Lisbon Treaty, 2009

SEA

Single European Act (1973)

TEU

Treaty of the European Union (1992)

TA

Treaty of Amsterdam 1998

TR

Treaty of Rome (1957)

2. Courts
ECJ

European Court of Justice

ECHR

European Court of Human Rights

3. Legislation
See individual chapters Under Soft Law
EES

The European Employment Strategy

4. Other
OECD

viii

Organisation for Economic Co-operation and Development

A THOROGOOD SPECIAL BRIEFING

L I S T O F A B B R E V I AT I O N S

5. A glossary of terms and phrases used in EU law


or commentaries on it

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.

European social model a model that emphasised high skill, high


wage and high social security and other protections. Especially well
developed in the Nordic/Scandinavian countries.

Directives agreed legislation by the EU requiring member states


to ensure by a set date that their national legal provisions are in line
with it.

Flexicurity a model developed around 1995 and which now


dominates policy making. It aims to ensure that the need for employer
flexibility is matched by worker security, though not in terms of job
security, rather in terms of social security, training and employability.

Subsidiarity enabling decision-making to be made at the lowest


level appropriate, usually at national level, including through collective
bargaining. It enables member states to reflect national provisions and
traditions.

Gold plating when national governments take the opportunity


during the process of transposing EU law into national law to add items
or aspects not required by EU law or to further complicate law.

Social dumping where states with a less demanding regulatory


regime that impacts on labour costs are able to undercut states that
make more demands and therefore increase costs on employers. Many
EU laws are specifically designed to avoid social dumping.

Social law this usually simply means employment law to us in the


UK.

Social partners organisations that represent employers or


employees and also the self-employed/small business community.

Social dialogue negotiations between the social partners.

A THOROGOOD SPECIAL BRIEFING

ix

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

Soft-law measures and agreements that establish guidelines or


advice but which do not provide rights for individual workers. The
guidelines might apply to a sector, an activity (such as homeworking/
teleworking) or to governments. Measures that provide rights or
obligations that can be enforced through courts are called hard law.

Social policy agreement an agreement between the social partners,


following the Maastricht Treaty that provided for law making in this way.
Usually, they have become hard law. Examples are the Directive on
Parental Leave (1996) and the Part-time Work Directive (1997).

Teleological the required method of interpreting and applying EU


law. This means that courts must reflect the stated aims of EU legislation
in their approach to applying it in national courts, not simply its
wording. This rule applies to national legislation that implements EU
laws in the law of each member state.

A THOROGOOD SPECIAL BRIEFING

A Thorogood Special Briefing

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 movement for individuals and businesses.

Freedom of trade, with the removal of all direct and indirect barriers.

Freedom of capital, so as to allow cross-border investment.

Freedom to provide services, with barriers, whether they be legal,


financial or of any sort removed.

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!

A THOROGOOD SPECIAL BRIEFING

1 INTRODUCTION

All of these Freedoms impact on employment relations and employment law.


They require the removal of barriers, say, to recruitment, training and qualifications so that EU citizens can move to work in other member states.
Businesses, including self-employed people, must also be able to move to other
states and come to the UK from other states.

The aims of this report


The aims are fairly simple. They are to:

Explain the origins, aims and approach of EU law to workplace issues.

Identify the key characteristics of EU employment law.

Consider the different approach of EU law to traditional UK employment


law.

Explore the major areas of EU employment law.

Assess the practical impact on employing organisations and HRM


practices.

Respond to common queries and issues.

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.

A THOROGOOD SPECIAL BRIEFING

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:

There are virtually no limitations on the type of employment contract


an employer can offer. There is no requirement, for example, to establish
a short term need before offering a fixed term contract; no requirement
that part-time numbers are limited or minimum hours offered and no
ban on zero-hours and similar contract forms.

There are relatively few requirements as to the terms that must be


provided (the National Minimum Wage (NMW) and paid holidays being
key exceptions).

There is considerable legal weight attached to the form and content


of a written contract of employment. Such a contract normally
overrides all other sources of terms, excluding legislation, but
including collective agreements, oral agreements, company practices,
etc. It is not surprising therefore that such importance is attached to
the form and wording of the contract and to the other documents that
are typically part of it, such as disciplinary rules.

The notion of agreement is taken seriously, especially when changes


to terms are contemplated.

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.

A THOROGOOD SPECIAL BRIEFING

1 INTRODUCTION

The other key areas of traditional UK employment law are:

Anti-discrimination law. Now a massive area of law and recently


subject to a major piece of legislation the Equality Act, 2010. The UK
developed law applying to race very early (1968) and to disability and
gender re-assignment in advance of most EU member states. In terms
of the awareness of and enforcement of law, sources of advice and
support, the UK is one of the leading nations in the EU. However, some
of the protections available outside the UK, such as for political beliefs,
family background and education have only very recently begun to
be recognised in the UK. The law is still largely rooted in the
employment contract and its terms, especially for the purposes of equal
pay legislation.

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.

Protective rights have developed in UK law rather spasmodically. There


has long been protection of earnings (Wages Act jurisdiction), which
first emerged in 1833, rights to information about terms of work, notice
periods and payment rights during lay-offs etc. The key rights of
redundancy payments and unfair dismissal emerged in 1965 and 1971,
respectively. They require payment of compensation and the law does
not generally intervene to question the need for redundancy, though
unfair dismissal law does require dismissals to be handled well and
for the employer to have grounds.
It is to be noted that UK law has only rarely questioned employers about
why they took a particular decision (to relocate, use agency temps
rather than directly employed staff, to dismiss rather than re-deploy
etc.).
Importantly, also, aside from the situation of large-scale redundancies,
they do not need to notify anyone or seek approval. Again this is in
contrast with most other EU states.

Family-friendly rights have been an emerging feature of UK


employment law, with increasingly supportive maternity, paternity and
other rights encouraging the better balancing of family life and work.

A THOROGOOD SPECIAL BRIEFING

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.

Enforcement of rights is complex in the UK. Statutory rights are


enforced through Employment Tribunals which are specialist courts
that contain lay members. This is a situation shared with most other
EU member states. However, contract rights still generally have to be
enforced through the ordinary civil courts, as do compensation claims
under health and safety laws and challenges to decision-making by public
bodies.

Government responsibility for employment law has become


increasingly fragmented. We have no discrete Ministry of Labour or
the like and responsibilities are shared between the Department for Work
and Pensions and the Department for Business, Innovation and Skills,
with many smaller units and quangos playing important roles.

A summary
Traditional UK employment law is:

Dominated by the contract of employment.

Dependent on the notion of freedom of contract, in such a way that


opting out and other forms of discretion are important features.

Characterised by contract law being very legalistically applied, often


using norms from commercial law.

Hugely influenced by anti-discrimination law.

Has employment rights, especially the major ones, reserved for


employees only.

Subject to legislation and case-law that, broadly, question how


decisions are made and implemented, not why or whether they are
needed at all.

A THOROGOOD SPECIAL BRIEFING

1 INTRODUCTION

Relatively non-interventionist, leaving the UK to develop its flexible


labour market whereby employers can determine the ways of working
that suit their needs, with little role for external bodies to question/
monitor employers.

What areas of HRM practice are most affected


by EU employment law?
To an extent, the answer to this question is dependent on the role of law more
generally and as a driver of organisational policy and practice change. Many
employers, when asked, will report that law plays a major (and often a negative) role, and reserve most of their harshest criticisms for EU law. Law adds
to costs, it is argued, and the aim should be for less law and less red tape.
However, much law simply formalises good practice, although it is accepted that
some areas of law are so complex that compliance is difficult.
At the heart of many of the complaints is the sense that EU employment law is
alien to our established practices and norms and is being imposed upon us.
So, we have to recognise the strong feelings that the EU generally and employment law in particular can give rise to.
Turning to the question itself, it is clear that some areas of practice have been
impacted on by EU law more than others. This is because there are some areas
that the EU is not competent to legislate on, as they are reserved for national
law. Included here are:

Pay and its setting (aside from equal pay).

Job security in terms of ordinary dismissals.

Industrial action.

Social security provisions, in terms of qualification, payments and their


rate.

Despite this, most areas of HRM practice are affected to a greater or lesser extent.
These include:

Recruitment and selection practices, including recruitment from


other parts of the EU.

Secondments/deployments to and from other parts of the EU.

A THOROGOOD SPECIAL BRIEFING

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 terms of work of part-time workers and fixed term/fixed task


employees and, in 2011, temporary agency working (but not all flexible
work patterns).

Business changes and restructuring.

Internal communication systems.

Staff management and career management.

Provision of occupational benefits, including holidays, maternity


benefits and some family friendly matters.

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.

Frequently asked questions (FAQ)


This book refers to EU employment law, but isnt it
EC employment law?
The answer is Yes. Employment law is technically still part of the European
Community (EC) provisions, but for reasons of convenience, EU is used in this
book.

Why does it matter that I know about EU employment law? Surely


the UK government will bring in British laws to implement it?
It matters because the nature of law is different and even if the government has
the prime responsibility for complying with EU law, some employers can still
be liable if the UK government fails to act correctly. The UK government does
not act as a shield for employers, so it is important to be aware of the demands
of EU law. Individual claimants can rely on EU law when pursuing claims in UK
courts and tribunals and it must be borne in mind that EU law always trumps
UK law (see Chapter 3 in particular). Employers in the public sector need to be

A THOROGOOD SPECIAL BRIEFING

1 INTRODUCTION

especially mindful, as sometimes the law affects them before private sector
employers.

Doesnt EU law recognise that we in the UK have


a different legal system?
To an extent, but the EU is about establishing a level playing field across member
states. However, it does recognise, through subsidiarity, that we may transpose
EU law in a way that is consistent with our laws and legal traditions. We must
always, though, meet the policy objectives of the EU law in question.

I have heard EU law described as superior to ours.


What does this mean?
It means that where the EU has competence to legislate on an aspect of employment relations, the UK courts have to recognise that if there is a clash of, say,
scope of law, definitions, etc., between UK legislation and EU legislation, then
the rules from the EU take precedence. Specific EU provisions cannot be ignored,
replaced or otherwise changed unless EU law provides for this.

How different is EU law from our law?


It is different not just in terms of the priorities of law but in how law is presented.
In general, EU law clearly defines the problem it is trying to solve by legislating.
(For example, poor working conditions for, say, part-timers, problems for people
with disabilities in getting a job, problems in the rejection of those with qualifications different from those in the state in which they are applying for work,
agency temps being exploited through low pay and insecurity etc.) It aims to
improve the situation by providing individual rights that can be enforced in
national courts. Put simply, the detail of legislation is preceded by a clear statement of its aims, and it then explains how a situation will be improved. UK law
generally fails to explain itself in terms of aims and objectives. EU law puts this
up front.

Where are cases on EU law heard?


Generally they are heard within the member states courts and tribunals. In the
UK it is normally in an ET. This is because EU law is part of national law. Cases
are only referred by UK courts to the ECJ when they raise an important issue
of law. The UK court does not have to be a superior court (the Coleman case

A THOROGOOD SPECIAL BRIEFING

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.

Is the European Convention on Human Rights part of EU law?


The answer is No, although there are some similarities. The ECHR was developed almost immediately after the Second World War by the Council of Europe.
This has a membership well beyond the EU and the ECHR deals primarily with
basic freedoms (of expression, to life, of family life, to a fair trial and protection
from degrading and inhumane treatment etc.). The European Court of Human
Rights is based in Strasbourg and, unlike the ECJ, individual litigants can have
access to it. The EU has a Charter of Fundamental Rights which is now a part
of the Lisbon Treaty. It covers slightly different topics and is more aspirational
in nature.

Do I need to speak or understand French?


The simple answer is No. However, as a proposed law is often first drafted in
French and cases in the ECJ are sometimes only reported in French, it helps if
you understand French.

The company I work for is Japanese owned. Isnt it immune from


EU employment law?
No: all enterprises that operate within the EU are covered by the law.

Where do I find out more about the law?


This book contains useful sources but to keep up to speed the www.euractiv.com
website is handy, along with the main website www.europa.eu. All documents
from the EU are downloadable free, as there is no copyright claimed for EU
materials.

10

A THOROGOOD SPECIAL BRIEFING

A Thorogood Special Briefing

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:

Law making procedures

Social dialogue agreements

Agreement to transform social dialogue agreements into law

There is no one legislative body at the EU level. The three main actors in legislative procedures are:

The European Commission

The Council of Ministers

The European Parliament

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.

12

A THOROGOOD SPECIAL BRIEFING

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.

A THOROGOOD SPECIAL BRIEFING

13

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

Directives set a binding aim on the national governments a result to be achieved.


National governments must achieve this aim by passing some form of national
legislation within a certain period the implementation period.
Decisions are binding on individuals or groups. They are often used in competition law e.g. to set a fine for a company or cartel thats breached competition
law.

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

It was not passed according to the correct procedure

It infringes one of the EUs general principles

The law was not passed in the public interest e.g. the legislature acted
fraudulently

14

A THOROGOOD SPECIAL BRIEFING

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!

A THOROGOOD SPECIAL BRIEFING

15

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.

16

A THOROGOOD SPECIAL BRIEFING

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

A THOROGOOD SPECIAL BRIEFING

17

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:

The European Economic and Social Committee (EESC)

The Committee of the Regions

They have to be consulted on employment legislation passed under Article 153


of the Treaty on the Functioning of the European Union.
The European Economic and Social Committee consists of three groups:

Employers

Employees

Various interests

The latter consists of diverse organisations including:

Farmers organisations

Small businesses

The professions

Cooperatives and non-profit associations

Consumer organisations

Environmental organisations

Associations representing the family

Persons with disabilities

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

18

A THOROGOOD SPECIAL BRIEFING

2 L AW M A K I N G I N T H E E U

clash, so it is difficult for it to achieve agreement in a timely manner. It is not


unknown for it to forward its opinion on proposed legislation to the European
Parliament after the Parliament has considered it, which makes its opinions less
influential than they could be.
The Committee of the Regions consists of representatives of local and regional
authorities. Employment policy is included in the areas where it must be consulted.
It is widely regarded as more influential than the EESC, particularly in matters
relating to the distribution of regional funding.

Right of legislative initiative


As stated above, all legislation originates from the Commission. This is totally
different from UK law making, in which legislation has to be introduced into
the UK Parliament and there is no equivalent of a Private Members Ballot
affording backbenchers the opportunity to bring forward draft legislation. The
European Parliament can request legislation under Article 225 of the Treaty
on the Functioning of the European Union, but it means just that it is a request
which the Commission can decline. However, under a Framework Agreement
in 2001, the Commission has committed itself to a prompt and sufficiently detailed
response to Article 225 requests.
Under Article 11 (4) of the Treaty on European Union there is a right of citizens initiative which requires the European Commission to respond to a proposed
change in European law signed by at least one million EU citizens. At the time
of writing, the European Commission is developing the rules and procedures
for exercising this right. There is also a current right to petition the European
Parliament and that has led to legislative change in the past. Given the scale of
support that is needed should the right of citizens initiative come into force,
and the relative rarity of a Parliamentary petition leading to legislative change,
for all practical purposes these are not channels that any lobbyist is likely to use
on a regular basis to effect change at the EU level.
There are other ways which lobbyists are likely to find more effective if they wish
to influence the content of draft EU employment law at this stage. The Commission will often use technical groups or specialist advisers when drafting legislative
proposals. Again, those who are well organised in Brussels or have a lot of resources
are best placed to participate in these activities. The UK Permanent Representation to the EU, which is a type of embassy, recommends forwarding views early
in the legislative process to maximise the chances of influencing the content of

A THOROGOOD SPECIAL BRIEFING

19

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

legislation successfully. The Permanent Representations role is to represent the


UK in negotiations that take place at the EU level, ensuring that Britains interests are heard by the EUs institutions. They have a number of teams, including
one for social and environmental matters which includes their employment law
and anti-discrimination representatives. As their members of staff are involved
in negotiating detailed EU legislation, it is worth contacting them when seeking
to influence the shape of legislation. Their web address is http://ukeu.fco.gov.uk/en/
Another way to influence legislation is to participate, possibly through some
form of grouping, in public consultations.

Legislative procedures Special legislative


procedure
When this legislative procedure is used, the legislative proposal is put forward
by the Commission and a decision is taken on this proposal by the Council of
Ministers following a consultation of the European Parliament. The European
Parliaments opinion must be sought and if it is not then the legislation can
be annulled but once obtained, it is not binding on the Council, which is the
sole decision maker when this procedure is being used.

20

A THOROGOOD SPECIAL BRIEFING

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 19 anti-discrimination legislation

Article 25 citizenship rights

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

Legislative procedures Ordinary legislative


procedure
Under this procedure, which is set out in Article 294 of the Treaty on the Functioning of the European Union, as always, the right of legislative initiative is
with the Commission, but the decision to adopt the legislation is taken jointly
by the Council and the European Parliament. Under this procedure the European Parliament will have two readings of the legislation. After the first reading,
the European Parliament will forward its opinion to the Council, following which
the Council will arrive at a common position.
First reading (ordinary legislative procedure)
Proposal

Commission

EESC

Proposal

Council of Ministers

Committee of
the Regions

European Parliament

A THOROGOOD SPECIAL BRIEFING

21

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:

Improvement in particular of the working environment to protect


workers health and safety

Working conditions

The information and consultation of workers

The integration of persons excluded from the labour market

Equality between men and women with regard to labour market


opportunities and treatment at work

22

A THOROGOOD SPECIAL BRIEFING

2 L AW M A K I N G I N T H E E U

Social dialogue negotiating in the


shadow of the law
The Commission will consult the social partners if it is minded to pass employment legislation under Article 153 of the Treaty on the Functioning of the
European Union. It must first consult them on whether they would prefer to
go down the legislative route or whether they would prefer to seek an agreement amongst themselves. If they choose the social dialogue route they will
negotiate in the knowledge that if they fail to reach agreement, the Commission may come forward with its own proposals, which creates an incentive to
finalise an agreement in case the Commissions proposals are even less to their
liking. If successful, the social partners can reach autonomous agreements, which
they can implement themselves or request that they be transformed into binding
legislation. Legislation which has come about as a result of the social dialogue
route includes:

The Parental Leave Directive (96/34/EC revised 18 June 2009)

Part-time Work Directive (97/81/EC)

The Fixed Term Work Directive (99/70/EC)

Delegated legislation comitology


A lot of detailed legislation is passed by the Commission but is supervised under
a complex committee system known as comitology. Initially, the European Parliament was excluded from comitology. With the increased use of the ordinary
legislative procedure, the European Parliament became increasingly unhappy
with this exclusion, which it felt was contrary to the spirit of co-decision. Since
the Comitology Decision of 1999 (99/468), which has been amended by Council
Decision 2006/512/EC, the European Parliament has been more involved in the
comitology procedure, which includes rights to information and to oppose the
adoption of measures under the comitology procedure.

A THOROGOOD SPECIAL BRIEFING

23

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 UK government is not enforcing EU


employment law correctly. What can be done?
Directives have to be transposed into national law, as they only set a binding
aim and this aim is achieved and fleshed out through national legislation. What
if this national legislation is defective in some way? What can be done?
1.

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.

24

A THOROGOOD SPECIAL BRIEFING

2 L AW M A K I N G I N T H E E U

Frequently asked questions


How do I influence EU legislation?

The golden rule is to get in as early as possible

Keep abreast of whats happening in Brussels and the priorities of the


Council Presidency

Express concerns to groupings who are well organised in Brussels,


such as employers organisations, professional bodies, trade
associations and ETUC

Contact the UK Representation to the EU

Participate in consultations on legislation

Petition the European Parliament

Better still, participate as a specialist when the Commission is


formulating its proposal

EU employment law has been passed and I want


to know if I can object
Challenges can be made on the basis that:

It breaches the EUs powers

It has not been passed according to correct procedures

It breaches a general principle of EU law or the incorrect legal base


has been used

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.

A THOROGOOD SPECIAL BRIEFING

25

This page is left blank intentionally

A Thorogood Special Briefing

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

Introduction and overview of the


scope and key directives
This chapter provides an overview of law and information about the key directives that are to be considered in more detail later in the Report.
In developing the agenda, the EU has prioritised those topics that are most likely
to achieve agreement between member states, as well as being seen as the most
important for an efficient labour market. Therefore, the following have dominated:

Topics that are thought to be important for social cohesion and social
justice for modern democratic states.

Matters thought important for the Single Market, mobility and


integration.

Those that are already developed in member states and will therefore
be relatively easy to promote across the EU.

Those considered relevant for competitive economies and to encourage


reconstruction and regeneration.

Those thought necessary for a level playing field and to avoid social
dumping (for definition see Chapter 1).

Measures that might help to diffuse opposition to change, especially


where, potentially, job losses might be involved.

The aims of this chapter are to:

Provide an overview of the legislation generated by the EU and its


sources.

28

Trace the evolution of the legal rules.

Explore the nature of EU law and how it differs from UK law.

A THOROGOOD SPECIAL BRIEFING

3 A B R I E F H I S T O RY O F T H E E V O L U T I O N A N D K E Y F E AT U R E S O F E U E M P L O Y M E N T L AW

Note the policy drivers.

Note the key role for soft law, especially the European Employment
Strategy.

The key areas for EU legislation


Before outlining the key areas of law, it is vital to note the key role of
lobbying in the legislative process. Most law is the subject of debate and
compromise and therefore represents the law that is acceptable to the
vast majority of EU states.

Protection from discrimination at work on grounds of sex. The key


directives are:

Equal Treatment Directive, 1976 Dir 76/207

Equal Treatment for Social Security, 1986 Dir 86/378

Equal Treatment: self-employment, 1986 Dir 86/613

Burden of Proof Directive, 1997 Dir 97/80

Equal Treatment in the Provision of Services, 2004 Dir 2004/113

Equal Treatment Directive, 2006 Dir 2006/54 (The recasting


Directive)

Equal Pay Directive, 1975 Dir 75/117

Protection from discrimination on other protected grounds. These are


currently race/ethnicity, disability, sexual orientation, age and religion
and belief.

Framework Directive on Equal Treatment, 2000 Dir 2000/78

Directive on Racial or Ethnic Origin, 2000 Dir 2000/43

Health and safety at work. This is the largest area of employment


legislation from the EU, with over 40 directives. Many are grouped
according to hazard-chemical, biological and physical agents, the last
including noise, electro-magnetic fields and vibration. There are
specialist directives on matters such as asbestos, lead and measures
to protect particular groups, such as pregnant women, young workers
and temporary (agency/outsourced) workers. The key directives are:

Framework Directive on Health and Safety at Work, 1989 Dir 89/391

A THOROGOOD SPECIAL BRIEFING

29

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

Hazardous Agents Directive, 1977

Pregnant Women Directive, 1992 Dir 92/85

Working Time Directive, 1993 Dir 93/104

Protections during business changes and restructuring. Many of the


earliest pieces of EU legislation deal with issues of redundancy, mergers/
acquisitions and outsourcing changes. The major directives are:

Collective Redundancies, 1998 Dir 98/59

Acquired Rights/Transfer of Undertakings (Amendment), 2001 Dir


2001/14

Freedom of movement for workers to obtain jobs or be seconded across


the EU and to establish businesses in other parts of the EU, along with
supportive measures, such as mutual recognition of qualifications and
skills.

Workers Directive, 1968 Dir 68/360

Right of Establishment, 1973 Dir 73/148

General System for Recognition of Diplomas,1989 Dir 89/48

Second General System for Recognition of Professional Education


and Training, 1992 Dir 92/51

Dir 2005/36 on the Recognition of Professional Qualifications

Posting of Workers, 1996 Dir 95/71

Provision of information and consultation with employees and/or their


representatives in addition to the requirements relating to redundancies
and transfers.

Rights for some atypical/non-standard workers, such as part-timers,


teleworkers, fixed term workers and agency temps.

Family friendly rights such as maternity rights and parental leave.

The phases of development of law


1.

Early laws from 1957: equal pay, some health and safety, equal
treatment for men and women, 1976; Acquired Rights, 1977.

30

A THOROGOOD SPECIAL BRIEFING

3 A B R I E F H I S T O RY O F T H E E V O L U T I O N A N D K E Y F E AT U R E S O F E U E M P L O Y M E N T L AW

2.

Stagnation 1977-86: the requirement for unanimity on voting for


Directives slowed things as there is growth in the number of member
states.

3.

Regeneration and activism 1986 to 1997: from 1986 qualified


majority voting (roughly two thirds of member states have to
support a proposal) led to health and safety changes, the Social Charter,
the Maastricht Treaty and social agreements on new laws parental
leave, part-time work, etc.

4.

Consolidation and new initiatives from 1998 and the Treaty of


Amsterdam: the rise of soft law through the EES and several
important new Directives, including the 2000 Equal treatment Directive.

5.

Reflection (and recession?) 2006 onwards: although some measures


have been adopted, such as the Temporary Agency Work Directive
2008 and a revised European Works Council Directive, 2009, more
recently there has been failure (over Working Time amendments) and
delays over measures on maternity and equal treatment (2008-10).

It is again important to note those employment law topics that do not feature,
and thus remain exclusively covered by UK law. These include:

Collective labour relations, other than matters of information and


consultation.

Industrial action.

Ordinary matters of discipline and dismissal.

Pay and reward systems generally.

Most occupational benefits.

Social security, the public employment services, etc.

Question 1 Why do we need EU employment


law at all?
Many still regard the EU as essentially an economic and trading organisation.
Others accept that it is better to co-operate with other nations regarding borderless issues, such as security, public health, consumer protection, environmental
issues and cross-border crime. But why employment law? There are many
employers and politicians who see any law as a burden (red tape?) and employment rights as especially burdensome.

A THOROGOOD SPECIAL BRIEFING

31

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 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:

If we have a Single Market for capital, goods, services and people, we


should have regulatory consistency (in Euro-speak, convergence)
across states as regards the workplace. This enables people to move
more freely, and not sacrifice rights if they move to work in another
country.

Some strong political views that the EU should focus as much on


protecting the rights of its people as creating successful and competitive
economies. There are also moral obligations, it is argued, to support
the disadvantaged, encourage participation in the labour market,
promote full employment and avoid social disruption caused by high
levels of unemployment.

As the costs of protective legislation impact directly on labour costs,


and therefore business costs, there should be a level playing field
across the EU. Failure to have consistent legal obligations on all
employers leads to social dumping, i.e. undercutting prices and
businesses in countries that provide greater protections.

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?

32

A THOROGOOD SPECIAL BRIEFING

3 A B R I E F H I S T O RY O F T H E E V O L U T I O N A N D K E Y F E AT U R E S O F E U E M P L O Y M E N T L AW

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.

The long running struggle to legislate for temporary agency workers.


Protections were proposed in 1983 and only accepted in November
2008.

It must also be borne in mind that we in the UK see EU law as controversial


because we have traditionally had very little legislation affecting employment
(see Chap 1). For many EU states, EU legislation merely confirms pre-existing
rules and requires, at worst, relatively minor amendments to them.
It might also be noted that currently there are no completely new topics for legislation, though much existing law is being amended or expanded.

Question 2 What are the general features of


EU employment law? How different are they
from UK law?
It will be recalled from Chapter 2, that EU employment legislation can take various
forms. The individual forms impact differently on employers.
Legislation can take the form of:

Articles of the Treaties and subordinate Regulations. (These are


binding on all employers with immediate effect.)

Directives that establish legal requirements for member state


governments to ensure provisions are implemented in their countries.
Directives have a set timetable, and once that has ended, public sector
employers are bound by the requirements of the Directive even if the
UK government has not transposed the law.

Soft law measures, such as Recommendations and Opinions. These


do not create enforceable rights for individuals, but set out good practice
or guidance. Soft law also includes the EES (see below).

All law is initially drafted by the European Commission.

A THOROGOOD SPECIAL BRIEFING

33

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 features of most EU legislation are:

Legislation tends not to be detailed and complex.

It sets down basic principles that are then applied by the ECJ and
national courts, or are implemented through national legislation.

EU law increasingly aims to reflect measures by global organisations,


such as the International Labour Office (ILO and its Recommendations
etc.) and the Organisation for Economic Co-operation and Development
(OECD). It has Guidelines for members who are the 30 most developed
world economies.

Legislation has clear policy underpinning. This is set out in a Directives


Preamble and explains clearly why the law is considered necessary and
why it has adopted a particular style and content. Sometimes, the
Preamble is followed by a section on General Considerations, though
it is unclear what their status is. The Preamble is vital for an understanding
of the way EU law works, as courts and tribunals are required to formally
reflect the Preamble in their judgments. This is called the teleological
approach to statutory interpretation.
(See also Chapter 2)

Question 3 How interventionist should EU law


be, especially the ECJ?
This is currently much debated, with two fundamentally different approaches.
The first says that employment rights are essential for successful economies and
even in recession it is vital to ensure workers are not exploited for economic
reasons. The counter argument says employment rights are costly, cannot be
afforded in a recession and that member states should anyway be free to find
their own solutions and not bullied by the ECJ, which is not democratically
elected anyway.

Question 4 What about traditional collective


labour relations?
This is an area of increasing tension. Labour relations have inevitably been affected
by the general decline in trade union membership, but unions still see them-

34

A THOROGOOD SPECIAL BRIEFING

3 A B R I E F H I S T O RY O F T H E E V O L U T I O N A N D K E Y F E AT U R E S O F E U E M P L O Y M E N T L AW

selves as (uniquely?) protecting workers. EU law is, though, increasingly requiring


workers representatives to be involved, not necessarily trade unions, in organisational and legislative consultations. Collective agreements generally have a
higher status in many member states (but not higher than legislation) as regards
terms of work, and recent ECJ case-law suggests that the EU competitive agenda
is more dominant than support for the traditional labour relations agendas.

Question 5 Where are we now?


As referred to above, the last three years saw relatively little new legislation,
aside from the TAW Directive and a revised European Works Council Directive, though there has been much lower level activity in terms of matters such
as recognition of academic and vocational qualifications between member states.
The key question today is the impact of changes introduced by the Lisbon Treaty,
2009. This gives increased powers to the European Parliament to amend or reject
proposed legislation (though not initiate it) and decision-making at the Council
of Ministers should also be speedier, with the use of qualified majority voting
for virtually all employment law matters. It is likely that 2010-11 will see more
amendments to existing law, including the relatively little known but increasingly important Posting of Workers Directive 1996.

Impact of EU employment law to date


It has been emphasised that the impact of EU law is not so much in terms of
the rules/requirements of law but often its emphasis on procedures and
approach. For example, although the UK has had protections for people affected
by redundancy since 1965, UK law basically requires the employer to financially
compensate the employee for their job loss, based on a strict formula. Questions of whether the employer needed to make people (or so many people)
redundant, as opposed to re-training, redeployment, changing job status, etc.,
and whether people were properly consulted about the changes, were not originally required by UK law. EU law demands consultation, in a timely manner
and for employers to seek ways of reducing the impact of the declining need
for skills. This means that consultation must occur prior to a decision being made
and the consultations should be meaningful. Employers should also consider
such matters as part-time working and reducing overtime. ECJ case-law has
been strict in its application of EU legislation.

A THOROGOOD SPECIAL BRIEFING

35

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

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

NSW* Equal pay

Equality

Cross border working

Status

Pay+

Disci/dismissal

Collective labour law


* = Non standard work
+= Other than equal pay

Impact on HR practice
Therefore, the following areas of work have probably been the most affected:

Risk management in occupational health and safety.

Internal communications systems/consultation processes.

Recruitment practices, especially from other parts of the EU.

Reward and career management, especially as regards pay for


women, part-timers and fixed term staff.

36

Management of working time, breaks, holidays and on-call time.

Handling organisational change.

A THOROGOOD SPECIAL BRIEFING

3 A B R I E F H I S T O RY O F T H E E V O L U T I O N A N D K E Y F E AT U R E S O F E U E M P L O Y M E N T L AW

A postscript the EES


The forgotten aspect of EU employment law: the European
Employment Strategy
This is a complex type of soft law. Set in train by the Treaty of Amsterdam,
1997, it is a radical way of aiming to achieve labour market and employment
change. The fact that few in the UK have heard about it or know how it works
does not reduce its importance for HR managers and employers.
Its origins lie in a Commission White Paper of 1993 that developed ideas to combat
the then high levels of unemployment, especially among the young. By 1997 there
were growing concerns about the EU remaining competitive in a global economy
and it was decided that these issues could best be dealt with by the member
states working together. The matters seen as critical were:

Vocational training.

Reducing non-wage costs.

Using active labour market policies.

Increasing employment growth.

Supporting those facing particular problems in the labour market, such


as women and people with disabilities.

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

A THOROGOOD SPECIAL BRIEFING

37

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

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.

Question 6 Why is this of relevance to HRM?


The main reason is that it explains much recent UK policy development and has
considerable relevance for many employing organisations. However, because
the policies are developed by the UK government it does not appear that they
are European. For example, the European Commissions Recommendations
to the UK government over the years have highlighted: that we perform badly
on vocational training and re-training, and on child care provision (thereby
limiting those who can work); that we have high absence levels for illness from
the workplace; that the pay gap between men and women is especially high;
and that there are insufficient incentives to get people into the workplace due
to over-generous social security rights, especially Incapacity Benefit.
Government measures to respond to these issues can be tracked, though the
role of the EES is not openly acknowledged. Some of the measures have drawn
on the experience of other member states in dealing with similar problems. We
can see, therefore, that the Welfare Reform Act, 2009, and other measures to
reduce the numbers on Job Seekers Allowance, the proposed extension of school
opening hours to accommodate working parents, stronger measures in the
Equality Act 2010 to counter unequal pay and the extension of training
schemes, especially for the young, may well have their origins in the EES.
The EES does not directly affect employers or make them liable to any sanctions. However, as a source of ideas and as a driver of policy and legal change
it is an important process to be aware of.

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.

38

A THOROGOOD SPECIAL BRIEFING

3 A B R I E F H I S T O RY O F T H E E V O L U T I O N A N D K E Y F E AT U R E S O F E U E M P L O Y M E N T L AW

The employment legal agenda is not and cannot be comprehensive,


though the EU approach to workplace issues is often very different
from our traditional UK one.

Legislation has often proved highly controversial and some measures


have been blocked, e.g. the revised legislation for working time, 2008.

EU legislation is generally easier to read and has clearly stated aims.


Judgments of the ECJ are also less complex than UK judgments and
law reports. The ECJ has been generally strongly protective of EU
employment legislation, though, again, there has been ebb and flow
in terms of creativity and passivity.

The chapters on substantive areas of law


The following seven chapters deal with those areas of EU employment law that are well developed. Each chapter follows a pattern that:

Sets out briefly the UK law on the topic.

Explains EU law, including key ECJ decisions on that law.

Explores the demands on employers and HR practitioners.

Suggests issues/areas to check.

The following topics are not explored, either because they are very
specialised or are not strictly from the EU:

Human Rights derived from the European Convention on


Human Rights.

Data protection.

The chapters are:


4.

Equal treatment of men and women

5.

Protection of other groups from discrimination

6.

Family-friendly measures

7.

Freedom of movement

8.

Health and safety at work

9.

Making business changes

A THOROGOOD SPECIAL BRIEFING

39

This page is left blank intentionally

A Thorogood Special Briefing

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

Equal treatment for men and women

Equal treatment of self-employed men and women

UK law
The key pieces of UK law are:

a) The Equal Pay Act, 1970 (as amended)


This established the basic legal approach to equal pay for men and women. It
requires equal pay for like work, work which is broadly similar and for work
of equal value. It does not require job evaluation to be undertaken but if one
has been (work rated equivalent), it requires implementation. The Act inserts an
equality clause in employment contracts and applies to both employees and
workers, i.e. many self-employed people. The Act requires a real comparator
but does enable the employer to justify unequal pay if there is a material difference/factor between the case of the man and the woman. Experts can be used
to define equal value.
Its basic approach uses the contract of employment as its starting point and
requires detailed comparisons of terms of work and although group claims have
become a major feature of recent litigation, especially in the public sector, the
law remains technical and often controversial. (See now the changes introduced
by the Equality Act, 2010.)

42

A THOROGOOD SPECIAL BRIEFING

4 E Q U A L T R E AT M E N T O F M E N A N D W O M E N

b) Sex Discrimination Act, 1975 (as amended)


This deals with wider aspects of the treatment of men and women and covers
direct discrimination (refusing a job, promotion, etc.) and indirect discrimination, which applies a condition to work which disproportionately disadvantages
one sex or the other. Indirect discrimination, as opposed to direct discrimination, can be justified, though the way this is done has been materially affected
by EU law. UK law also covers harassment, but again as a result of EU law. The
UK notion of victimisation, i.e. being penalised at work for asserting rights, is
also in part derived from EU law. Note also the Employment Equality (Sex Discrimination) Regulations, 2005, that made some definitional changes but also
introduced the soft law duty to promote opportunity on grounds of sex by
public bodies.
There is no explicit legislation that applies to the self-employed, though many
are covered by the worker definition so long as they personally execute work
for an employer. Traditionally, compensation for breaches of these Acts was
limited. Case-law on both equal pay and sex discrimination is extensive, though
successful claims remain fairly unusual, despite, perhaps, media coverage that
suggests the opposite!

EU law
The main pieces of legislation are:

For equal pay

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

Directive on Equal Pay 1975 Dir 75/117


This fleshed out Article 141 by requiring:

Criteria referencing for job classifications.

Effective access to judicial process for those denied equal pay.

A THOROGOOD SPECIAL BRIEFING

43

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

Member States to eliminate inequalities in collective agreements, wage


agreements or individual contracts of employment.

Protection from dismissal for making complaints.

Key case-law on EU equal pay provisions


It will be recalled that the Member States are required to have provisions in their
own state that meet the demands of the EU Directives. Should this not be the
case, the European Commission can refer possible breaches to the ECJ and
the ECJ decides on the matter. If there is a breach, Member States have to
amend their laws. In the case of the UK, we did not have an equal value concept
enabling comparisons to be made across jobs and occupations. This had led to
low pay in traditional female jobs such as caring, catering and cleaning to remain
unchallenged, as often there were no males employed in the establishment.
Cases are referred to the ECJ by courts in Member States for clarification of
the nature and scope of EU legislation. In equal pay claims a number of issues
have dominated the caseload of the ECJ, mostly concerned with employers
attempts to justify the status quo. Given the cost implications of equal pay claims
this is unsurprising!
Set out below are some of the key ECJ decisions that have practical significance.
Many early cases involved access to rights by part-timers, though from 1997
and the Part-time Work Directive, part-timers have been subject to wider protections in any event. The two basic areas explored by the ECJ are:
1.

Who and what is covered by the right to equal pay?

2.

When are differences in pay justifiable?

1. Who and what is covered?


The dispute has, of course, to be about pay. The ECJ straight way gave pay
a very wide definition in that it clearly covers basic and enhanced pay, overtime, occupational benefits and occupational pensions, and also a Christmas bonus
(Lewen v Denda 2000 C-333/97). Women on maternity leave have been held
not to be entitled to pay as they have specific provisions applying to them. The
provisions do apply to concessionary benefits, such as purchases, travel, accommodation, etc. (Garland v. British Rail Engineering (1982 C-12/81) this dealt
with concessionary rail travel).

44

A THOROGOOD SPECIAL BRIEFING

4 E Q U A L T R E AT M E N T O F M E N A N D W O M E N

BARBER V. GUARDIAN ROYAL EXCHANGE (1990 C-262/88)

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)

North Yorkshire Council contracted out a number of services, including cleaning


and catering. The staff affected were made redundant and then re-employed by
Regent. They brought an equal pay claim against Regent, citing their former
colleagues as comparators.
The ECJ rejected the claim. It stated: Where the differences identified in the pay
and conditions of workers performing equal work or work of equal value cannot
be attributed to a single source there is no body which is responsible for the
inequality and which could restore equal treatment.

A THOROGOOD SPECIAL BRIEFING

45

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

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

2. When are differences in pay justifiable?


The EU equal treatment agenda quickly established the principle that defences
to claims should be carefully scrutinised. Unequal pay could only be justified
on grounds of having a legitimate aim (recruit to difficult posts, provide short
term protections to pay during restructuring, etc.) but that the response by the
employer should be proportionate. This introduced rigor and flexibility at the
same time, whilst recognising explicitly the principle of equality.
ECJ case-law and its emerging jurisprudence has frequently concerned the legitimacy or otherwise of arguments put forward to justify unequal pay. It was clear
that a contractual agreement or collective agreement to unequal pay would not
provide a defence, so the arguments moved on to greater subtleties. In early
cases that went to the ECJ it was argued that the contribution made by, say,
part-timers and casual workers was different and less beneficial to the employer
and this would justify lower pay.
JENKINS V. KINGSGATE CLOTHING ((1981 C-96/80)

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.

46

A THOROGOOD SPECIAL BRIEFING

4 E Q U A L T R E AT M E N T O F M E N A N D W O M E N

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.

A THOROGOOD SPECIAL BRIEFING

47

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

Access to overtime payments by part-timers has been very controversial, with


employers generally requiring part-timers to complete the normal full-time hours
before qualifying for enhanced payment. (See page 67 for case law.)

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.

Implications for HRM


It is suggested that the major implications of EU equal pay law are:

To note the wide definition of pay. Any benefit, whether discretionary


or not, whether current or deferred, whether a one off or regular
payment, is covered.

To look carefully at the case-law that has implications for recruitment


and for reward systems generally. The application of the legitimate aim
and proportionality rules apply even where jobs are hard to fill or where
staff are hard to retain. Where a post-holder has left but the opportunity
is taken to reduce pay, there are risks. The award of bonuses is an
especially tricky area and needs to be criteria-referenced and to be
transparent. We have seen in UK courts the vulnerability of attendance
allowances and the like that appear to have little objective justification.

Where types of flexible working are dominated by women, such as


casual, stand-by and on-call work, or with contractors/freelancers,
issues of relative pay need to be checked out.

Pay structures that provide annual increments that are automatic,


especially if they are not in any time barred, are now at some risk and
should be reviewed if they have not been already in the light of age
discrimination.

48

A THOROGOOD SPECIAL BRIEFING

4 E Q U A L T R E AT M E N T O F M E N A N D W O M E N

Equal treatment for men and women


This is an area of law where UK and EU law operate on the basis of similar rules
and, indeed, legislation developed at virtually the same time.

UK law
The key pieces of UK legislation are:

Sex Discrimination Act, 1975 (as amended by the Employment


Equality (Sex Discrimination) Regulations, 2005)

Sex Discrimination Act, 1986

Sex Discrimination (Indirect Discrimination and Burden of Proof)


Regulations, 2001

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.

A THOROGOOD SPECIAL BRIEFING

49

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 law
The key pieces of legislation are:

Equal Treatment Directive, (1976) Dir 76/207, as amended by;

Directive 2002 Dir 2002/73 on the implementation of the principle of


equal treatment of men and women as regards access to employment,
vocational training and promotion, and working conditions

Equal Treatment for men and women: occupational social security


schemes, (1986) Dir 86/378

Equal treatment: Self-employment (1986) Dir 86 86/613

Sex Discrimination: Burden of Proof (1997) Dir 97/80

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.

Indirect discrimination, defined as an apparently neutral provision,


criterion or practice that would put persons of one sex at a particular
disadvantageunlessit is objectively justified by a legitimate aim and
the means of achieving that aim are appropriate and necessary.

Harassment and sexual harassment (as defined in UK law).

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.

50

A THOROGOOD SPECIAL BRIEFING

4 E Q U A L T R E AT M E N T O F M E N A N D W O M E N

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:

Disregarding a woman on maternity leave for pay rises, promotion


or other benefits is discrimination (Thibault, 1998 C-136/95).

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).

Refusing to take on a candidate who was pregnant at the time of the


selection is direct discrimination. The argument that there would be
extra costs and, say, that the employers insurer had put pressure on,
is not a valid justification (Dekker, 1990 C-177/88).

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.

To refuse a woman on parental leave who discovers she is pregnant


and wants to swap her leave for maternity leave is discrimination.
(Kiiski, 2008 C-116/06).

A THOROGOOD SPECIAL BRIEFING

51

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

Confirmation that the maternity period does not break the period of
continuous employment (Sass, 2004 C-284/02).

To deny the rights of transsexuals in the case of P v S (1996 IRLR 347),


where it was held to be sex discrimination to dismiss a female posttransgender person who had been recruited as a male.

The protection of self-employed persons from discrimination on grounds of


sex and the right not to be discriminated against in setting up a business has
not given rise to any significant ECJ case-law. It must, however, be noted again
that the EU notion of a worker does include most freelancers, consultants,
contractors, etc., who work as individuals rather than as businesses and who
employ others. In principle, there is scope for claims based on, say, fees differentials between men and women, unfairness in the distribution of work or type
of work, the significant role of, say, old boys networks in obtaining work, the
role also of professional bodies and business associations in encouraging or
discouraging women members, etc. Should such claims arise, the ECJ and
national courts would apply the now well developed principles of equal treatment law.
As considered above, provisions regarding the burden of proof, whereby once
a prima facie case of discrimination has been established the burden shifts to an
employer to prove they had not discriminated against the claimant, has not
produced much ECJ case-law. The hurdle for claimants remains that they have
to establish the prima facie grounds for conduct is, for example, gender, rather
than, say, poor performance.

Implications for HRM


Within the UK, equal treatment laws are so well embedded, and, indeed, in some
respects go far wider than EU law, that the implications are not that significant.
The major impact has probably been in the areas of equal pay (see above) and
maternity rights. The ECJ has, though, stressed, that women should not be overlooked for opportunities and development, even when away on leave. Therefore:

Care should be taken not to exclude or withdraw job offers from


pregnant women, even where the posts are of short duration, seasonal,
etc., or to deliberately place obstacles to return from maternity leave
through deleting posts, offering a downgraded post or selecting women
on maternity leave first for redundancy.

Information systems should carefully record training needs and


realities, especially for part-time posts and job sharing and as regards

52

A THOROGOOD SPECIAL BRIEFING

4 E Q U A L T R E AT M E N T O F M E N A N D W O M E N

women on maternity and some other leave. None must be overlooked,


nor assumptions made that they are not, for example, interested in
management training or study leave.

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.

Access to a range of benefits, such as overtime, foreign travel and


working from home, should not directly or indirectly treat men and
women differently. This requires particular care as regards part-timers
who are still predominately women.

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?

Decisions should not be made in an insensitive manner concerning


requests or behaviour by a woman worker, especially one who has
caring responsibilities. Many cases are lost, not least at the ECJ, because
an employer behaved in an aggressive or off-hand way to a woman,
despite there being good business reasons for a decision.

Care must be taken as regards the employment of self-employed


persons, such as freelancers, along with casuals who are classified as
workers even though they do not have employee status. Pay and
benefits, access to opportunities, provision of status, etc., should not
treat men and women differently.

A THOROGOOD SPECIAL BRIEFING

53

This page is left blank intentionally

A Thorogood Special Briefing

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.

Part A: Other protected groups


This part of the Chapter covers EU legislation and case-law on:

Race and ethnicity (not colour)

Disability

Sexual orientation

Age

Religion and belief

UK law
The key pieces of UK (home grown) legislation are:

56

Race Relations Act, 1976

Disability Discrimination Acts, 1995 and 2005

Equality Act, 2006

Sex Discrimination (Gender Reassignment) Regulations, 1999

Equality Act, 2010

A THOROGOOD SPECIAL BRIEFING

5 P R O T E C T I O N O F O T H E R G R O U P S F R O M D I S C R I M I N AT I O N

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:

The basic concepts of direct and indirect discrimination are long


established in UK law; harassment similarly has a long history, though
was originally part of direct discrimination rather than having a separate
category.

Disability has always been treated differently by UK law. It provides


for claims on the basis of direct discrimination, and only recently for
indirect discrimination, and contains the unique notion of reasonable
adjustments for disabled people. From the 2010 Act comes a new
protection equality discrimination as a consequence of disability.
It also has a tight definition of disability but also one that encompasses
specified illnesses and recognises disability even though the individuals
condition is being successfully dealt with by drugs or other treatments.

UK law on race provides a wide definition, covering race, ethnicity,


nationality and colour.

UK law has placed considerable emphasis on advisory and support


bodies (the EOC, CRE, DRC now all subsumed in the Equality and
Human Rights Commission following the 2006 Equality Act).

UK law remains embedded in contractual rights and compensation


based in the law of tort/delict; it does not claim to have a dignity or
human rights basis.

There has been a significant recent move to soft law, in terms of


requirements on public bodies to actively promote opportunity for
perceived disadvantaged groups. In the Equality Act 2010, this now
includes those disadvantaged by economic and social factors, as well
as adding age, sexual orientation and religion or belief to the other
established areas of law.

UK law has emerged strongly in defining and protecting disability and


has important protections for those undergoing or undertaking
gender re-assignment.

Claims under UK legislation are a marked feature of ET litigation,


though, despite media interest and sometimes dramatic reportage, the
success rate remains fairly low.

It might be noted that UK legislation protects people on grounds of


marital status. This only includes married people or those who have
a civil partnership.

A THOROGOOD SPECIAL BRIEFING

57

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

Case-law in the UK has been willing to impose vicarious liability on


the employer, i.e. where the discrimination to a worker is caused by
colleagues, members of the public, etc.

It has also been willing to award aggravated damages where conduct


has been especially bad, in addition to the statutory right to
compensation for injury to feelings.

As a consequence of EU legislation, we now have UK legislation on age, sexual


orientation and religion or belief, much of which has given rise to contentious
and often controversial case-law within the UK.

Employment Equality (Sexual Orientation) Regulations, 2003

Employment Equality (Religion or Belief) Regulations, 2003

Employment Equality (Age) Regulations, 2006

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:

Equal Treatment Framework Directive, 2000 Dir /78

Racial Equality Directive, 2000 Dir/43

It might be noted that recent attempts to extend protections on grounds of age,


sexual orientation, religion, etc. and disability into the sphere of the provision
of a wide range of services is currently stalled. It might also be noted that before
2000 most member states did already have sex discrimination laws and often
enshrined equality issues in their constitution or in other major pieces of legis-

58

A THOROGOOD SPECIAL BRIEFING

5 P R O T E C T I O N O F O T H E R G R O U P S F R O M D I S C R I M I N AT I O N

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.

A THOROGOOD SPECIAL BRIEFING

59

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

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.

Case-law from the ECJ


Taking each of the grounds in turn, we can see that the key case-law has been
largely in the areas of disability and age, with relatively little case-law on sexual
orientation, religion or, indeed, race.
A) 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

60

A THOROGOOD SPECIAL BRIEFING

5 P R O T E C T I O N O F O T H E R G R O U P S F R O M D I S C R I M I N AT I O N

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.

A THOROGOOD SPECIAL BRIEFING

61

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 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).

62

A THOROGOOD SPECIAL BRIEFING

5 P R O T E C T I O N O F O T H E R G R O U P S F R O M D I S C R I M I N AT I O N

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 B: Atypical/non-standard working


This section covers:

Part-time work

Fixed term work

Temporary agency 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-

A THOROGOOD SPECIAL BRIEFING

63

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

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

64

A THOROGOOD SPECIAL BRIEFING

5 P R O T E C T I O N O F O T H E R G R O U P S F R O M D I S C R I M I N AT I O N

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.

Homeworkers were not treated distinctively.

Only some part-timers were granted basic statutory rights.

Fixed term employment was unregulated, though the non-renewal was


treated as a dismissal.

Casuals, including stand-by and zero-hours workers have typically had


access to very few statutory rights, either because they were not classified
as employees or did not have sufficient continuity of employment.

Agency temps were unregulated, though agencies tightly regulated.

Atypical working was re-enforced by the right to request flexible


working under the Employment Act, 2002.

A THOROGOOD SPECIAL BRIEFING

65

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 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)

Provide for the removal of discrimination against part-time workers


and to improve the quality of part-time work.

b)

Facilitate the development of part-time work on a voluntary basis, and


to contribute to the flexible organisation of working time in a manner
which takes into account the needs of the employers and workers.

The key provisions are:

Part-time working is doing less hours that a full-timer.

Establishment of the principle of non-discrimination compared with


a comparable full-time worker, in respect of employment conditions.

The full-time workers must be at the same establishment, having the


same time of employment contract and engaged in the same or similar
work or occupation.

The discrimination to be claimed must be solely because of part-time


working.

If there is different treatment it can be justified on objective grounds.

Refusal to move from part-time to full-time or vice versa should not


be a valid reason for termination of the contract.

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.

Employers should give consideration to senior posts being undertaken


on a part-time basis.

66

A THOROGOOD SPECIAL BRIEFING

5 P R O T E C T I O N O F O T H E R G R O U P S F R O M D I S C R I M I N AT I O N

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.

Key case-law from the ECJ


PART-TIME WORK

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.

A THOROGOOD SPECIAL BRIEFING

67

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

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:

Improve the quality of fixed term work by ensuring the application of


the principle of non-discrimination.

Establish a framework to prevent abuse arising from the use of


successive fixed term employment contracts or relationships.

The main provisions are as follows:

Fixed term workers are defined as persons having a direct employment


contract or relationship wherethe endis determined by objective
conditions, such as reaching a specific date, completing a specific task

68

A THOROGOOD SPECIAL BRIEFING

5 P R O T E C T I O N O F O T H E R G R O U P S F R O M D I S C R I M I N AT I O N

or the occurrence of a specific event. A permanent worker is one whose


contract or relationship is of indefinite length.

The requirement for non-discrimination in terms of work unless


objectively justified.

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:

Establish that there must be objective reasons justifying the nonrenewal.

Set the maximum total duration of successive fixed term contracts.

Set a limit on the number of renewals.

Clause 6 provides for access to information and training, and places


an obligation on the employer to inform fixed term workers about
permanent vacancies at the organisation.

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.

Case law from the ECJ


This, as in the case of part-time work, has been limited, although there has been
a recent flurry of interesting and controversial cases. Cases have emphasised
the general principles underpinning the Directive. In Del Cerro Alonso (2007)
C-307/05 it was stated that the equal treatment of fixed term and permanent
workers is a principle of Community social law (which) cannot be interpreted
restrictively.
The key issue of whether a non-renewal, with or without objectively justifiable
reasons, infringes the Directive was considered in the case of:
JIMENZ MELGAR (2001) C-438/99

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.

A THOROGOOD SPECIAL BRIEFING

69

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

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!

Temporary Agency Work


The final atypical/NSW Directive is the Temporary Agency Work Directive,
2008, Dir 2008/104.
This was again a hard-fought measure but one that progressed through the EU
in the normal way (see Chapter 2). Agency working is developed very unevenly
across the EU, with the UK, France, Belgium and the Netherlands having significant numbers of agencies and temps but some member states having little
experience of this type of working. Many resist agency working as undermining
public employment services or being used to drive down working conditions.
Others support it as providing flexibility, assisting in unemployment and leading
to job creation.
The Directive was adopted in October 2008 and builds on the legislative models
of both the other atypical work Directives (i.e. on a non-discrimination model)
and on legislation in many member states. This means that law would inevitably,
in applying the non-discrimination principle, be a complex and possibly
controversial measure.

70

A THOROGOOD SPECIAL BRIEFING

5 P R O T E C T I O N O F O T H E R G R O U P S F R O M D I S C R I M I N AT I O N

The main provisions are:

Agency temps should be entitled to non-discriminatory treatment as


regards core terms of work with a comparable worker at the agencys
client enterprise.

The employment relationship is with the agency (though the nature


of it is not defined).

Where the temp has a permanent contract of employment with the


agency, the non-discrimination provisions will not apply.

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.

Temps should be informed of permanent vacancies at the client


enterprise.

Obstacles to the legitimate development of agency working should be


removed.

Again there is considerable emphasis on the elimination of abuses and it will


be recalled that the UK negotiated a 12-week derogation from the anti-discrimination provisions. In May 2009, the UK government launched a Consultation
and issued draft Regulations in October 2009. The Agency Work Regulations
will come into effect in October 2011.

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.

Implications for HRM


The implications of EU law have not proved dramatic. This comment includes
the Temporary Agency Directive, as the UK governments exclusion of temps
that are self-employed, operate through their own company or who have not

A THOROGOOD SPECIAL BRIEFING

71

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

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:

Have efficient internal communications and recording systems such


that the organisation knows how many part-timers there are, how many
are on fixed term contracts and when they are scheduled to end, and
that they record the number and deployment of agency temps.

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?

72

A THOROGOOD SPECIAL BRIEFING

5 P R O T E C T I O N O F O T H E R G R O U P S F R O M D I S C R I M I N AT I O N

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).

The policy driver for EU law is prevention of abuse and protection of


vulnerable workers, not encouraging of diversity/flexibility as such.

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.

A THOROGOOD SPECIAL BRIEFING

73

This page is left blank intentionally

A Thorogood Special Briefing

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

This Chapter is concerned with family related matters including:

Maternity rights

Parental leave

Time off for domestic emergencies

UK law
The key pieces of UK legislation are:

Employment Protection Act, 1975 (as amended)

Employment Rights Act, 1996 (Care for dependents)

Maternity and Parental Leave Regulations, 1999

Employment Act, 2002

Paternity and Adoption Leave Regulations, 2002

Work and Families Act, 2006

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:

A right to reasonable time off for antenatal care.

A period of maternity leave.

A right to return to work.

Maternity pay (a combination of state and employer payments for most


women).

Protection from victimisation for exercising rights.

It should be noted that if a woman suffers a detriment for a pregnancy-related


reason, UK law has for some recognised that she will likely also have a claim
for sex discrimination.

76

A THOROGOOD SPECIAL BRIEFING

6 FA M I LY- F R I E N D LY M E A S U R E S

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:

The right to request flexible working soon to be extended to all


employees.

Paternity rights.

Rights on the adoption of a child.

Rights concerning care of dependents.

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.

Where a risk has been identified, protective measure should be taken,


or the worker be redeployed and if these are not possible, she should
be granted leave.

Prohibition of night work and redeployment to day work, or, if this is


not possible, she should be granted leave.

A THOROGOOD SPECIAL BRIEFING

77

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

A minimum period of maternity leave of 14 weeks, 2 weeks of which


are compulsory.

Protection from dismissal.

A right to time off for antenatal care, without loss of pay.

A right to maternity pay (an adequate allowance) paid at at least


what she would receive if she was off work connected with her state
of health.

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:

Male and female workers have individual entitlement to leave on the


grounds of the birth or adoption of a child.

The leave is for 3 months minimum (soon to be increased to 4 months


minimum).

The child can be aged up to 8 years, as defined by national law.

The right to return to the same or an equivalent job.

The maintenance of acquired rights.

Protection from dismissal.

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

78

A THOROGOOD SPECIAL BRIEFING

6 FA M I LY- F R I E N D LY M E A S U R E S

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.

Case-law from the ECJ


It might be noted that the backdrop to many of the cases decided by the ECJ is
quite different to the UK. In most EU states, parental leave is paid, typically at
a lower rate than maternity leave, is longer and is usually added on to the end
of maternity leave. It should be noted that some of the cases considered below
are also briefly discussed in Chapter 4.

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

This confirmed that even to dismiss or to refuse to employ a pregnant woman


recruited to a fixed term post, whereby, due to the training needs and maternity leave, little work could actually be done, was nonetheless sex discrimination.
DEKKER (1990) C-177/88

This case also concerns attempts at justifying refusals to employ a pregnant


woman. In this case the argument was that the employers insurers would not
fund sickness benefit if an employee was pregnant at time of recruitment. The

A THOROGOOD SPECIAL BRIEFING

79

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

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

80

A THOROGOOD SPECIAL BRIEFING

6 FA M I LY- F R I E N D LY M E A S U R E S

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

A THOROGOOD SPECIAL BRIEFING

81

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

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?

Implications for HRM


Maternity rights are well established in UK law and much of the ECJ caselaw will be familiar to practitioners. It is generally clear and provides strong
guidance.
Some of the key implications for employers are:

Maternity law is a part of sex discrimination law, though there is no


need for a male comparator as pregnancy is uniquely female. The refusal
to employ, promote, reward equivalently or select first in a redundancy
situation is difficult to defend.

Arguments that it will be too expensive to employ a pregnant woman,


too inconvenient, not worth while because the post is time limited
etc. have fallen on deaf ears. Even arguments that it would be too risky
on health and safety grounds are unlikely to succeed. The legislation
is clear as to what has to be done if there are risks to the woman or
her unborn child.

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

82

A THOROGOOD SPECIAL BRIEFING

6 FA M I LY- F R I E N D LY M E A S U R E S

ensuring that there are no impediments to individuals taking leave in


the holiday year, with severe restrictions on carrying holidays over.
Caution must be taken in this area and no assumptions made that the
law will be flexible.

Many of the uncertainties regarding parental leave have yet to be


resolved by the ECJ but again great care should be taken to not cause
detriments in any way through taking leave, especially in treating men
differently from women. It appears that there is greater reluctance to
accede to flexible working requests from men than women and there
are always the possibility of sex discrimination claims arising out of
attitudes and practices regarding parental leave.

Where employing organisations have written policies on maternity


and parental leave as well as adoption leave, ensure they reflect the
most recent ECJ decisions and ensure that revised Directives will be
a part of these documents when the proposed EU legislation is adopted.

Summary points

The maternity agenda and consequent rights are well established in


EU law and most of the practical issues have been adjudicated on by
the ECJ.

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.

Although the EU has developed some areas of family friendly rights


it might be observed that the UK has in many respects moved well
beyond the EU agenda, especially in terms of recognition of civil
partnerships, transsexuals and paternity rights. This makes EU law
generally more easy to absorb.

A THOROGOOD SPECIAL BRIEFING

83

This page is left blank intentionally

A Thorogood Special Briefing

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

This is one of the most important areas of EU law impacting on employment


practices and one that is subject to considerable controversy. It will be recalled
from Chapters 1 and 3 that at the heart of the EU agenda are the Four Freedoms of capital, goods, services and people. The last two are of considerable
significance for employers, workers and clients of employing organisations. Essentially, the EU is one market for the provision of skills and it follows that people
have to be free to work in any member state. Organisations must also be free to
provide skills across borders. This may be through an agency, outsourcing, secondment or other mechanism.
At the same time, the EU is committed to competition as a means of improving
the efficiency of employing organisations and providing benefits to consumers
and others in the EU. Considerable EU legislation is required to support these
policies and the key aspects are set out below.
The topics covered are:

Freedom of movement for workers

Freedom of establishment for firms and professionals

Mutual recognition of qualifications

Freedom to provide services cross border

Posting of workers cross-border

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.

86

A THOROGOOD SPECIAL BRIEFING

7 FREEDOM OF MOVEMENT

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 of TEU-free movement of workers and their families

Art 20, that provides for free movement of self employed people
and their families

Art 20-freedom to provide services

Council Directive 2004/48 on citizens rights, students and retired


persons (the economically inactive)

Directives affecting various professions such as in medicine, law


and architecture

A THOROGOOD SPECIAL BRIEFING

87

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

Regulation 1612/68 on freedom of movement and recognition of


qualifications (now superseded)

Directive 2005/36 on recognition of academic and vocational/craft


qualifications (a consolidating measure)

Posting of Workers Directive 1996/71

The legislation itself


As mentioned above, the freedoms of EU law, i.e. the removal of obstacles to
people investing, selling, working, living, etc. in another member state, are fundamental to the EU agenda. Clearly, the obstacles can relate to tax, social security,
administrative, etc. matters. This chapter will only focus on matters relevant to
recruitment and employment. The rights are based on the notion of EU citizenship, a notion that is of growing importance, especially since the Lisbon Treaty
has now become a reality.
Articles 20 of the TEU established the basic principles. The main ones are the
right to work in a member state other than your own and not to be discriminated against in connection with your nationality. There is also coverage outside
the EU where aspects of employment are governed by law of one of the member
states.
The need to remove obstacles was confirmed by the notorious case of Bosman
(1995) C-416/93. This concerned barriers to the freedom of movement of professional footballers and the outcome of the case was to open up possible challenges
to all rules and practices that protect home workers or exclude (directly or
indirectly) non-nationals. The rules apply to workers. However, the worker
must be carrying out services for and under the direction of another person.
This means that the genuinely self-employed, such as consultants, casuals,
contractors, etc., are excluded but are covered by other legislative provisions.
Practices such as requiring advanced qualifications in language skills where the
job is in manual work or requires little contact with people; requiring a period
of residence before applications are received; testing the knowledge of customs
and practices of your state; and giving priority to job applicants who have links
with existing staff in the organisation etc., will likely deter applications and may
be considered contrary to Art 20.
Legislation and collective agreements, as well as recruitment practices, can be
declared null and void if they contravene Art 20 and the possibilities for justification are limited.

88

A THOROGOOD SPECIAL BRIEFING

7 FREEDOM OF MOVEMENT

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.

A THOROGOOD SPECIAL BRIEFING

89

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

At present, there is no harmonised system of qualifications, though with the


Bologna Process in higher education, the process is moving on apace, with
growing equivalence in degree structures, credit ratings of study programmes
and agreed distinctions between under-graduate and post-graduate programmes.

Case-law from the ECJ


These combine enforcement actions taken by the European Commission and
individual claims by job seekers etc.
EUROPEAN COMMISSION V. SPAIN (2008) C-39/07

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

A Polish national was refused employment as a trainee in Germany. He was told


he needed to take a test in all compulsory legal subjects for the state first examination. The Polish applicant had a degree in law from Poland and Frankfurt
University, and a two year Bachelor degree in German and Polish Law. The ECJ
stated that EU law does not require acceptance of lower skills and experience,
but that there should be some flexibility. The legal requirement is for equivalence
not for identical content etc. of qualifications. If there is a shortfall, then that is
the part to be tested. It is unlawful to impose on an individual a requirement that
they pass everything or reach a particularly high standard, if home applicants
are not required to.

90

A THOROGOOD SPECIAL BRIEFING

7 FREEDOM OF MOVEMENT

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:

For part time tutors in Italian universities etc. having to be Italian.

For the Ecole de Ski in France to only employ French nationals.

For snowboarding trainers only to be French nationals.

Other individual claims have been more complicated.


KHATZITHANSIS (2008) C-151/07

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

An Italian national who had studied in Germany sought employment in an Italian


University. The universities in Italy had developed a List of approved lecturers.
He was told he needed to be on the List and applied. He was rejected. The ECJ
held that freedom of movement provisions had not been infringed. University
teaching (as in the UK) is not a regulated profession and employers have considerable discretion as to how and who they recruit. The List was only one of the
pieces of information they would use.
This brief consideration of case-law illustrates that although the policy aims of
an open employment market are clear, the delivery has still some way to go. It
remains hard to predict the outcome of claims, with the ECJ still holding to a
view that employers in member states are best placed to judge who is appropriate for a particular job. Rather obvious protectionist practices, such as a blanket
rule to preserve jobs for home nationals when there appears little objective reason,
have been successfully challenged and the legal rules on the regulated professions have been broadly upheld.

A THOROGOOD SPECIAL BRIEFING

91

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 POSTED WORKERS DIRECTIVE 1996 DIR 1996/71

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:

Equal treatment protection.

Health and safety protection, including entitlements to paid holidays.

Entitlements under host employment laws, including the national


minimum wage if there is one.

These protections were designed to encourage movement of people and to aid


integration.
However, the growth in cross-border agency work, outsourcing and successful
tendering, especially for construction work, has thrown this Directive into recent
prominence. This has been because in a number of high profile cases, workers
from lower wage economies have been posted to higher wage economies to
undertake work. As would be expected, trade unions and many politicians have
reacted strongly to these practices, arguing that high labour standards are being
undercut. The events in Lincolnshire in the summer of 2009 when Italian workers
were brought in to do building work on an oil refinery triggered the British
Jobs for British Workers campaign.
Cases have ended up in the ECJ, perhaps the most famous being:
LAVAL (2007) C-341/05

A Latvian company was contracted to undertake building work in Sweden, using


Latvian workers. Collective agreements set pay and other conditions in Sweden,
but the Latvian workers did not have them applied to them. Their pay and other
conditions were lower. The Swedish unions argued this was in breach of the
Directive; the Latvian company argued that to interfere with the terms of employment was uncompetitive. (The Swedish unions had blockaded the work site,
preventing access.) The Latvians won. Had the pay rates etc. been set by law,
the situation would have been different.
The implications of this decision for UK employers are fairly simple. It is necessary to apply to posted workers any legislative requirements, such as paid
holidays, maternity rights, security of earnings, but purely contractual matters
can be left to agreement.

92

A THOROGOOD SPECIAL BRIEFING

7 FREEDOM OF MOVEMENT

Implications for HRM

The freedom of movement provisions are relatively simple in their


objectives but detailed in their practical application. If recruiting or
receiving posted workers from other EU states, it is necessary to be
aware of the detailed provisions.

The treatment of other EU nationals must be non-discriminatory, even


in matters such as how they are selected (in theory, if travel expenses
are paid to UK nationals, they should be to non-nationals; if an
assessment centre is used it should be used for non-nationals as well).

It is important to check recent developments through the Cedefop and


Eures websites and the European Commission (see Sources).

It might be important to note some significant differences in practice


as between the UK and other member states. For example, first degrees
are generally longer and more broadly based than in the UK.
Therefore applicants for first jobs tend to be older. Many states still
require military service, so this too might make them older for first
jobs. Some have requirements for military reserve service, and this
needs to be respected.

On the whole, though, this is not a problem area for HRM!

Summary points

The EU has developed a complex and evolving series of measures to


encourage movement of workers between states, and the removal or
restriction of barriers to their so doing.

In reality, movement has not been that significant, though UK nationals


have been amongst the most mobile, including through the Posting
provisions.

Looking forward, there will likely be further harmonisation measures


regarding qualifications and possible reform of the Posting of Workers
Directive.

A THOROGOOD SPECIAL BRIEFING

93

This page is left blank intentionally

A Thorogood Special Briefing

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.

The law of breach of statutory duty that provides for compensation


for harm caused by the specific breach of health and safety legislation.
This is the most common health and safety cause of action in the
UK

The contract of employments two implied terms. The first is to require


all employers to protect workers from workplace risks; the second to
provide trust and support, especially regards health and safety
concerns.

Other legislation, such as the Protection from Harassment Act, 1997,


the provisions in the Employment Rights Act, 1996, protecting those
who stop work when faced with danger, and the Public Interest
Disclosure Act, 1998, that protects genuine whistleblowers.

96

A THOROGOOD SPECIAL BRIEFING

8 H E A LT H A N D S A F E T Y AT W O R K

UK health and safety legislation had a number of features, now substantially


changed by EU law. These included:

Legislation was targeted at specific industries or types of people.


Examples of the former include manufacturing, mining, construction
and railway premises. Examples of the latter include legislation to
protect women and children at work.

Application of a legal standard that required employers to take steps,


so far as reasonably practicable, to protect people. This standard is
flexible and can reflect employment circumstances but it is difficult to
enforce.

Implementation of the recommendation of the Committee chaired by


Lord Robens that reported in 1973 and which led to the Health and
Safety at Work etc. Act, 1974. This aimed to reduce accidents and ill
health through the shared responsibility for safety of all at work but
gave a key role to trade unions for safety monitoring. The 1974 Act
continues to provide the administrative, policy and enforcement
framework and defines the key duties of all at work.

By 1974 (when we were already an EU member state) the UK had a complex


though uneven legislative framework that focussed mainly on safety issues in
dangerous employment sectors and activities. However, in 1988 we introduced
the Control of Substances Hazardous to Health Regulations, (COSHH) to implement a Directive on Hazardous Agents, 1980, from the EU. This signalled a major
change.

EU health and safety law


In the 1980s a small team, working in EU offices Luxembourg, put together a
new and radical approach to work and workplace risks. The strategy was unveiled
in the 1989 Framework Directive on Health and Safety (1989 Dir 1989/391). The
Framework Directive was quickly followed by several other Directives, introduced into the UK in 1992 as the so-called Six Pack set of Regulations. This
comprised:

Work Premises

Work Equipment

Personal Protective Equipment

A THOROGOOD SPECIAL BRIEFING

97

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

Display Screen Equipment

Manual Handling

Safety Management

The Directives are predicated on a number of relatively simple and consistently


applied principles. These include:

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.

The legal duties of employers are to:

Assess how severe risks are.

Record the outcome of the risk assessment.

Pay particular attention to those who may be at particular risk,


such as pregnant women and young and new workers.

Put in place effective preventive measures that have as their aim


the elimination of risks, but if this is not possible to reduce risk
to its lowest possible level.

Monitor risks by re-doing assessments when changes occur and


at regular intervals and by using information sources such as health
and safety committees, suggestion schemes, employee
development interviews to check on overall health and safety
standards.

Review practices on an on-going basis.

The effect of this strategy is to apply a common and consistent approach


to all workplaces and work activities driven by the core notion of risk
management. This requires proactivity as regards hazards and risks
(not waiting for a near miss before acting) and for the employer to
provide adequate resources and named personnel for the safety
management tasks.

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

98

A THOROGOOD SPECIAL BRIEFING

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.

The key Directives

Hazardous Agents Directive, 1980/1107

Health and Safety (Workplace Directive 1989/654)

Noise Directive 1986/188 See also Directive 2006/25

Chemical Agents Directive 1998/24

Biological Agents Directive 1990/679

Framework Directive 1989/391

Work Equipment Directive 1989/655 (last amended 2007/30)

Personal Protective Equipment Directive 1989/656 (last amended


2007/30)

A THOROGOOD SPECIAL BRIEFING

99

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

Display Screen Equipment Directive 1990/270

Manual Handling Directive 1990/269 (last revised 2007/30)

Asbestos Directive 1983/477 and 1991/382

Safety Signs Directive 1992/58

Maternity Directive 1992/85

Working Time Directive 1993/104

Atypical Work Directive 1991/383

Young Workers Directive 1994/33

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.

100

A THOROGOOD SPECIAL BRIEFING

8 H E A LT H A N D S A F E T Y AT W O R K

Case-law from the ECJ


Other than the major decisions on the 1993 Working Time Directive, most of
the interventions by the ECJ have resulted from allegations that member states
have failed or have failed to fully implement directives.
An example of these types of cases is:
COMMISSION V. ITALY (2001) C-49/00

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

A THOROGOOD SPECIAL BRIEFING

101

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

This was a challenge to the UK governments 1998 Regulations that required


13 weeks continuous working before a right to a holiday accrued. The union
that brought the case operated within the media industry where intermittent
and short-term contracts were endemic. The ECJ accepted that the rule would
disbar many UK workers from paid holidays and held the rule to be unlawful.
The case therefore implied that weeks could be added together, albeit with breaks
and when 13 weeks was reached a weeks paid holiday accrued.

102

A THOROGOOD SPECIAL BRIEFING

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.

Implications for HRM


The EU health and safety agenda is especially coherent, consistent and robust.
It provides a clear way to view workforce and workplace issues and its risk
management approach can be applied to all types of risk. The key employer duties
of risk assessment, prevention and monitoring can be applied to the full range
of workplace problems, including violence, stress and health problems more
generally.
Helpfully, the EU strategy also emphasises that all at work have legal obligations.
Workers, too, have obligations to not only co-operate and comply with health
and safety duties and procedures but also a duty to inform management if there
are shortfalls in their health and safety systems. These are important and HRM
compatible obligations that can be re-enforced through the contract of employment and policy documents. It is, of course, appreciated that how important the
EU health and safety agenda is to HRM in a particular employing organisation
will depend on the extent to which HRM has responsibility for it or whether it
is jointly or exclusively undertaken by a separate occupational safety and health
function. Nonetheless, whatever the situation, given the increasing importance
of worker health, wellbeing and safety issues, it is important that the nature and
approach of EU law is taken on board and appreciated.

Some of the key implications for HRM are:

EU law requires effective and proactive risk management throughout


the organisation and for all types of workers, and all work activities,
including overseas work.

A THOROGOOD SPECIAL BRIEFING

103

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 concerns must always be responded to through a


coherent and transparent procedure, confirming in the UK the implied
obligations from the contract of employment.

The need to appreciate the implications of strict liability is a serious


one. Much of the key UK legislation uses the strict liability test. Stark
v Post Office (2003) is a well established case in point. The claimant
was a postal delivery worker who was injured when his bike collapsed
under him. The bike was 12 years old but had been regularly checked
and maintained. The cause of the collapse appeared to be metal fatigue
which would likely not have been detected by even the most rigorous
examination. The bike was held to be work equipment, was covered
by UK Regulations to implement an EU Directive and was subject to
strict liability in terms of being provided with safe work equipment.
It was not and compensation had to be paid. Employers need to be
aware of the demands of law here, so quality assurance processes need
to be especially rigorous.

The need to ensure that the especially at risk groups, including


pregnant women, people with disabilities (such as hearing or sight
impairment), the young, trainees and intermittent and other workers
are covered by effective risk assessments. These assessments must be
reviewed when circumstances change. Research indicates that many
employers are not updating or responding to risk assessments. Such
failures, for example, in relation to pregnancy and disability will likely
also amount to unlawful discrimination.

Grievance procedures must, if they do not do so already, accommodate


health and safety concerns. If employees are fobbed off, for example,
where their complaint relates to violence, harassment or bullying, they
may rightfully blow the whistle.

Internal communication systems, if they do not already do so, should


mainstream health and safety concerns. Health and safety, along with
wellness issues should not be hived off or isolated, as the EU sees
a holistic approach as a key to successful risk management.

Appropriate and engaging health and safety awareness and training


should take place, not just as a compliance matter but through an
attempt to really engage with the issues and to explore the nature and
level of risks affecting individuals and groups. It is inadequate just to
do training following an incident or accident. The training methods
and their timing need careful consideration (is induction day really the

104

A THOROGOOD SPECIAL BRIEFING

8 H E A LT H A N D S A F E T Y AT W O R K

best time?) and non-standard workers including the self-employed need


to be a part of it. EU law covers workers working at home, on anothers
premises and when they are travelling matter which may require
liaison and training with other organisations.

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.

Make sure all documentation relating to health and safety is up to date.


Nothing is more damaging that an H&S inspector finding a document
still in use dated 1975!

Summary points

This is one of the most coherent and settled areas of EU employment


law, though uncertainties remain over working time.

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.

A THOROGOOD SPECIAL BRIEFING

105

This page is left blank intentionally

A Thorogood Special Briefing

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

A THOROGOOD SPECIAL BRIEFING

9 MAKING BUSINESS CHANGES

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.

UK traditional approaches to change


Until 1963, under UK law it was only if you had a well crafted contract of employment that the employee would be protected from job loss caused by redundancy
or the need for change. In effect, most people could be hired and fired at will.
The Contracts of Employment Act, 1963, required for the first time that a notice
period had to be given to terminate the contract. In 1965, the Redundancy
Payments Act was introduced and provided lump sum payments for those
genuinely made redundant, i.e. there was no continuing need for their skills or
work was being relocated. In 1971, the Industrial Relations Act introduced the
individual right to unfair dismissal. It required grounds for a fair dismissal
(including redundancy) and that the employer behaved fairly in the manner of
the dismissal. This package of legislation had a strong normative effect, with
the development of policies and practices in employing organisations that were
not only compliant but which eased the change process.
However, as with the Redundancy Payments Act, the remedy for the overwhelming percentage of those who had unfairly lost their jobs was compensation
that deliberately rewarded the long serving and older employees. In the 1970s
and 1980s case-law grew apace, ACAS established standards of procedure
though, essentially, the legal process was a private law one, with little state
intervention and no active labour market policies to require retraining, effective outplacement and other measures. Some described the package as the poor
mans Golden Handshake i.e. a reward for past service and loyalty.
Reducing staff numbers and closing factories and other work premises were
not the only changes occurring from the 1970s. Many, especially from the early
1980s, enthused about the notion of the flexible firm, aimed to change the
composition and deployment of staff so as to reduce waste and to increase organisational responsiveness. Some of the changes gave rise to a few employment
law problems, such as the replacement of full-time staff with part-timers, or putting

A THOROGOOD SPECIAL BRIEFING

109

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

new recruits on to fixed term contracts or, perhaps, so-called zero-hours


contracts, and increasing the use of agency temps.
UK law has never inhibited employer choice of labour-use strategies (unlike in
many other parts of the EU), with no legal questioning of why changes were
made, why the job was only offered on a fixed term basis or why temps were
being used when there were clearly strong on-going needs for skills. The rise of
contracting out/outsourcing from the 1980s, which had overt government encouragement that nullified any notions of requirements for fair wages, contract
compliance and respecting established labour standards, left employers with
wide discretions.
The role of the contract of employment must not be forgotten. See, perhaps,
the saga of the BA cabin staff dispute in 2009-2010 where it was argued that
the major changes proposed by BA to staffing levels amounted to a repudiation of contracts and merited the granting of an injunction to restrain BA. In
the event it was refused). The workings of the contract of employment can,
through its requirement for employee consent to changes, operate as a restraint
on employers but it must be borne in mind that EU law has no competence in
the private law of employment contracts. So, UK law must always be considered in the change process.

EU legislation

Collective Redundancies Directive, 1975 Dir 75/129 Amended by


Directive 92/56 1992

Acquired Rights Directive, 1997 Dir 77/197 Amended in 2001 Dir


2001/23 (ARD)

Insolvency Directive, 1980 Dir 80/987 Amended 2002 Dir 2001/74

Works Council Directive, 1994 Dir 94/45 Amended 2009 Dir 2009/
38

Framework Directive on Information and Consultation 2002 Dir


2002/14

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

A THOROGOOD SPECIAL BRIEFING

9 MAKING BUSINESS CHANGES

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:

Consultation rights for workers representatives (not just recognised


unions).

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.

Representatives are to be informed regarding a wide range of issues,


including the reasons for the redundancies, the numbers affected and
likely time scales. As a consequence of the amendments in 1992,
additional matters were added. These include the criteria for selection
for redundancy and the methods for calculating the redundancy
payments.

A THOROGOOD SPECIAL BRIEFING

111

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 consultations should include measures to avoid or reduce the


numbers affected (maybe pay cuts or hours reductions), or to mitigate
the consequences where redundancies have to take place.

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.

Case law from the ECJ


The ECJ has generally sought evidence of good faith from employers, as well
as compliance with the specific duties.
AKAVAN 2009 C-44/08

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:

Where outsourcing of work beyond the EU is occurring, even though


there could be no real outcome of the change for staff, they should
nonetheless still be consulted about the change.

Consultation with a union with whom the employer had a collective


agreement was inadequate for the purposes of the Directive. The
consultations must be with the representatives of those actually affected.

112

A THOROGOOD SPECIAL BRIEFING

9 MAKING BUSINESS CHANGES

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.

Acquired rights/transfer of undertakings


If there have been few controversies and cases under collective redundancies
legislation, the same cannot be said for the Directives on acquired rights. This
legislation is intrinsically more ambitious, more complex and contains a myriad
of definitional problems. First adopted in 1977, to ease resistance to restructuring within the EU, it adopted, to us in the UK at any rate, a novel format.
This was to transfer the workers affected by a takeover, merger or other change
of business ownership to the new owner so as to prevent business changes, of
themselves, providing a rationale for job losses. The staff affected are treated
as stock in trade. The new owner and their new employer has to respect their
acquired rights, i.e. their term and conditions of employment, both contractual
and derived from collective agreements. This legal requirement to maintain terms
of employment lasts for an imprecise period of time and the last revision of the
Directive in 2001 did not clarify the matter.
The consequence of the Directive is that there can be no changes to terms of
work, even where it is thought they are to the workers benefit (Katsikas 1992
C-139/91). In effect, the social policy objectives of the Directive cannot be negotiated out of.
Before turning to the major duties under the Directive, as amended, it should
be noted that increasingly the amendments have provided flexibility for
member states as to how they apply the basic rules. For example, there is an
option for member states that responsibilities and costs can be shared between
the transferor and transferee; that occupational pensions can transfer, if wished,
collective agreements can accept the need for increased flexibility if it is in the
interests of the business concerned, and states can define who the rights apply
to (only employees?).
It should also be noted that the interventions and approaches of the ECJ have
been subject to major ebb and flow. Sometimes the court has provided very wide
protections for workers; sometimes a more restrictive view has been taken. It
is notoriously difficult to predict the outcome of a case in the ECJ, especially
over the central definitional issue of what is a transfer. The UK has always

A THOROGOOD SPECIAL BRIEFING

113

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).

Where the transferred business is insolvent, under the 2001 Directive


there is more flexibility as regards treatment of the transferred
workforce.

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

A THOROGOOD SPECIAL BRIEFING

9 MAKING BUSINESS CHANGES

ABLER (2003) C-340/01

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.

A THOROGOOD SPECIAL BRIEFING

115

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:

If an undertaking meets the definition of a transnational undertaking,


there is a need to set up a Special Negotiating Body to prepare for an
EWC. It should be noted that temps do count for the worker thresholds
to determine qualification. It should also have representation from all
states in which the transnational enterprise operates.

116

A THOROGOOD SPECIAL BRIEFING

9 MAKING BUSINESS CHANGES

A EWC must comply with the formal requirements of legislation as


to composition, meetings and the management of the consultation
process.

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.

There is growing importance attached to the manner in which


information and consultation takes place, with an intention to make
it more meaningful and relevant.

EWCs have a duty to keep all employees informed of meetings and


outcomes.

To provide rights for employee representatives to have paid time off


for training in connection with the EWC, and that the EWC has available
to it effective administrative support and special facilities, such as
translation services.

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.

The Information and Consultation Directive, 2002. Dir 2002/14


Following four years of debate, the EU adopted this Framework Directive. It is
deliberately linked to the objectives of the EES, and therefore to active measures to respond to crises, prevent the worst outcomes and focus on retaining

A THOROGOOD SPECIAL BRIEFING

117

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.

Implications for HRM


Interestingly, the implications of the EU laws on business changes, especially
the ARD, have been more profound from UK courts and tribunals than ECJ caselaw. This is not just because UK implementation has been direct and thorough
at the least and considerably gold-plated at most, but because right from the
outset UK courts were alert to evasive tactics by employers. Courts and tribunals
have consistently stressed the teleological demands on them to reflect in their
judgments the aims and objectives of the EU legislation. In the case of ARD/TUPE
it has been to protect employment, and we note this trend continuing with the
application of ARD to service provision contracts.
For HRM, this EU agenda implies:

Particular attention is paid to the social and labour market objectives


of these areas of law. They are closely tied to the EES, emphasise social
dialogue and protection of employment. The priorities may have
changed in recent years, with flexicurity taking centre stage, but the
procedural aspects remain critical.

The overriding need is to ensure that the HRM function is involved


in the change processes, especially outsourcing. To see outsourcing,
recruitment of agency temps, etc., as simply part of the procurement
process is misconceived and out of sympathy with EU legislation. All

118

A THOROGOOD SPECIAL BRIEFING

9 MAKING BUSINESS CHANGES

skills use and deployment changes must be carefully overseen by HRM


and the possible legal repercussions kept in mind.

Internal communications systems need to ensure HRM is aware of even


short term measures involving change, e.g. the setting up of a short
marketing, IT or other project. They will need to be checked out for
possible ARD or other compliance issues and they need to be handled
correctly.

To recognise that today there is increasing pressure from staff who


want to transfer. This seems marked in some of the professional services
areas and expectations will have to be carefully managed.

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.

It is important that information and consultation is undertaken in a


timely and professional way. The law does not provide any concessions
to an employer who thinks that information might cause alarm or worse.

For HRM in transferee organisations, clearly there is a need to respect


all acquired rights, including from collective agreements and,
importantly, to be cautious about harmonising terms. There is nothing
in the law that allows change after a year!

The need also to remember the contract of employment.

Summary points

This is an important area of EU law with clear objectives but less clear
strategies and rules.

The overriding need is for effective and timely information and


consultation, though the enforcement of rules is not strong.

The major impact has been through ARD/TUPE, especially on


outsourcing and service provision. UK law is far more demanding than
EU law in this regard.

A THOROGOOD SPECIAL BRIEFING

119

This page is left blank intentionally

A Thorogood Special Briefing

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

www.europa.eu (The basic EU website)

www.euractiv.com (An official, but more journalistic, website)

http://ec.europa.eu/employment_social/index_en.html (European
Commission DG for employment)

www.eurofound.europa.eu (The European Foundation for the


Improvement of Living and Working Conditions; a research, monitoring
arm of EU employment issues)

http://eurofound.europa.eu/eiro (The European Foundations industrial


relations observatory)

www.socialplatform.org (The website of NGOs in Europe)

html://osha.europa.eu/OSHA (The EU health and safety agency)

www.bis.gov.uk (The lead UK government Department that negotiates


much EU employment law)

www.courtservice.gov.uk or www.bailli.org (For ECJ and other law


reports)

www.eurobarometer.eu (Surveys of attitudes of EU citizens)

www.eures.eu (The EUs public employment service)

www.cedefop.eu (The EUs advice centre on training and qualifications


etc.)

122

A THOROGOOD SPECIAL BRIEFING

10 HELPFUL SOURCES

2. Books and articles

Barnard, C (2004), The Substantive Law of the European Union: The


Four Freedoms, OUP

Barnard, C (2006), EC Employment Law, OUP (3rd Edition)

Barnard, C, and Scott, J (eds) (2002), The Law of the Single Market:
Unpacking the Premises, Hart Publishing

Bell, M (2002), Anti-discrimination Law in the EU, OUP

Daly, M (2006), EU Social Policy after Lisbon 44 Journal of Common


Market Studies. 461

Davies, G (2003), Nationality Discrimination in the European Internal


Market, Kluwer

EC (2009), Employment in Europe, European Commission

Hervey, T, and Kenner, J (eds) (2003), Economic and Social Rights under
the EU Charter of Fundamental Rights, Hart

Kenner, J (2003), From Rome to Amsterdam and Beyond, Hart

Krebber, S (2006), The social rights approach of the European Court


of Justice 27 Comparative Labour Law and Policy Journal 377

Leighton, P (2009), Effective Recruitment: A Practical Guide to Staying


Within the Law, Thorogood Publishing

Leighton, P (2008) Temporary Agency Working and the European


Employment Strategy in Rogowski, R (ed) The European Social Model
and Transitional Labour Markets, Ashgate

Leighton, P, Syrett, M, Hecker, R, and Holland, P (2007), Out of the


Shadows: Managing Self-employed, Agency and Outsourced Workers,
Butterworth-Heinemann

Owen, R (2009), European Union Law, Law in a Box Publishing


(www.lawinabox.tv)

Shaw, J (2000) (ed), Social Law and Policy in an Evolving European Union,
Hart

Tsoukalis, L (2005), What Kind of Europe?, OUP

A THOROGOOD SPECIAL BRIEFING

123

This page is left blank intentionally

Other specially commissioned briefings


from Thorogood
BUSINESS AND COMMERCIAL LAW
Commercial Contracts: Drafting
techniques and precedents
Ribeiro, Robert

Email: Legal issues 2008


Singleton, Susan
169

ISBN: 978-185418271-5

This briefing takes you through the drafting process


giving practical guidance from start to finish. With
up-to-the-minute information on key cases and
materials and in-depth analysis of the important drafting issues, it is a must for all those who need to draft
commercial contracts.

What are the chances of either you or your employees breaking the law? This briefing explains clearly:

How to establish a sensible policy and whether


or not you are entitled to insist on it as binding

The degree to which you may lawfully monitor


your employees e-mail and Internet use
The implications of the Regulation of Investigatory Powers Act 2000 and the Electronic

Commercial Litigation: Damages and


other remedies for breach of contract

Communications Act 2000


169

How the Data Protection Act 1998 affects the


degree to which you can monitor your staff

ISBN: 978-185418397-2

A great deal has changed in the last few years... a


new emphasis on claims for damages such as loss
of business, opportunity, chance, use and data and
recent landmark cases have altered the ground-rules.
Completely updated, this briefing includes accounts
of all the most recent important cases and highlights
significant changes in the way that the courts now
assess damages.

Corporate Governance
Martin, David

125

ISBN: 978-185418630-0

Ribeiro, Robert

NEW EDITION

85

What you need to watch for in the Human Rights


Act 1998 and TUC guidelines.

Freedom of Information Act


in Practice 2008

NEW EDITION

Singleton, Susan

125

ISBN: 978-185418632-4

The FOI Act gives companies and individuals


important powers to request information from
public bodies. Are you equipped to take advantage
and to protect yourself?

ISBN: 978-185418354-5

This briefing is a clear, accessible and jargon-free


analysis of the practical application of Corporate Governance. With short case studies to illustrate legal
requirements, the author guides the reader through
all aspects of the Corporate Governance programme,
concentrating specifically on its use by organisations
who are not required to adopt it, such as listed PLCs.

For full details of any title, and to view


sample extracts, please visit:

www.thorogoodpublishing.co.uk

International Commercial Agreements


Attree, Rebecca

95

ISBN: 978-185418286-9

A major briefing on recent changes to the law and


their commercial implications and possibilities. The
briefing explains the principles and techniques of successful international negotiation and provides a
valuable insight into the commercial points to be considered as a result of the laws relating to: pre-contract,
private international law, resolving disputes (including alternative methods, such as mediation),
competition law, drafting common clauses and contracting electronically. It also examines in more
detail certain specific international commercial agreements, namely agency and distribution and licensing.

Insights into Successfully Managing


the In-house Legal Function
OMeara, Barry

Intellectual Property Protection


and Enforcement
95

Brazell, Lorna

159

ISBN: 978-185418174-9

ISBN: 978-185418054-4

Negotiating the fault-line between private practice


and in-house employment can be tricky, as the
scope for conflicts of interests is greatly increased.
Insights into successfully managing the in-house legal
function discusses these and other issues.

Incorporating the latest developments in IP law, this


briefing reviews each of the principal forms of intellectual property right available in the United
Kingdom, describing the nature of the right itself and
explaining: How rights arise or can be obtained, How
rights can be exploited, What is necessary to protect
rights from erosion or loss, What actions will
constitute infringement of a right, under either civil
(enforced by the owner) or criminal (enforced by
public authorities) law, What remedies are available
to the owner of the right, once infringement has been
proved.

Software Contract Agreements


Bond, Robert

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.

Achieving Business Excellence, Quality


and Performance Improvement
Chapman, Colin & Hopper, Dennis

95

ISBN: 978-185418018-6

The Commercial Exploitation of


Intellectual Property Rights by Licensing
95

ISBN: 978-185418285-2

This briefing will show you whether as licensor or


licensee how to identify and secure profitable opportunities, strategies and techniques for negotiating the
best agreement, and finally the techniques of successfully managing a license operation.

HOW TO ORDER

Waste Management: The changing


legislative climate
Hand, Caroline

This valuable briefing identifies all the areas critical


to developing an effective performance improvement
process. It is a practical guide to the use of business
excellence models and frameworks, quality standards,
benchmarking tools, self-assessment programmes
and the latest performance improvement initiatives.

DesForges, Charles

Each chapter can be read on its own for convenient


reference, and the introduction to each chapter also
makes it clear where awareness of another section
may be useful.

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.

Websites and the Law


Singleton, Susan

95

ISBN: 978-185418331-6

Is your company/client website legal? Do you know


what information you are required by law to put on
it? What can you do with peoples personal data sent
to your website? This briefing deals with all the practical legal issues which arise with websites both
those sites which sell goods or services and those
which advertise.

Please see order form at the back of this briefing

Telephone: +44 (0)1235 465 500

Post: Marston Book Services, PO Box 269


Abingdon, Oxon OX14 4YN

Fax: +44 (0)1235 465 556

Web: www.thorogoodpublishing.co.uk

Email: direct.orders@marston.co.uk

80

BUSINESS STRATEGY AND MANAGEMENT


A Practical Guide to Knowledge
Management
Brelade, Sue & Harman, Chris

Understanding SMART Procurement


in the MOD
99

Boyce, Tim

69

ISBN: 978-185418230-2

ISBN: 978-185418164-0

An expert but jargon-free guide to enable you to


manage the knowledge in your organisation successfully and to identify, gather and use that knowledge
to maximum advantage.

The main thrust of this briefing is on issues to do with


strategy, organisation and processes. The single most
encouraging and exciting feature of the SMART
procurement initiative is that it embraces the need
to change the culture. There is a commitment within
the high political echelon of the MoD to make this
change happen. Probably the greatest single challenge is to ensure that this commitment is maintained
through the inevitable changes of personality at the
political and senior management level.

Analyse your Business A performance


health check
OConnor, Carol

89

ISBN: 978-185418170-1

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.

Tendering & Negotiating MoD Contracts


Boyce, Tim

95

IT Governance
Norfolk, David

95

ISBN: 978-185418371-2

This specially commissioned briefing sets out what


the latest legislation says and what it means, its impact
on the organisation as a whole and on the IT group
specifically, and how to implement an effective IT governance initiative in your company.

ISBN: 978-185418276-0

This briefing aims to draw out the main principles,


processes and procedures involved in tendering and
negotiating MoD contracts. As Tim Boyce writes in
the Introduction, it is important to realise that the
SPI embraces a conceptual shift in the role of the
MoD procurers.
What does this huge shift in thinking mean for
contractors? How exactly has the role of MoD
purchasing changed? This briefing covers every
aspect of competitive tendering, negotiation and
contractual negotiations in this new era. There can
be few people who combine Tim Boyces experience
and expertise with a gift for explaining issues and
procedures with such clarity.

Practical Techniques for Effective


Project Investment Appraisal
Tiffin, Ralph

99

ISBN: 978-185418099-5

How to ensure you have a reliable system in place.


Spending money on projects automatically necessitates an effective appraisal system a way of
deciding whether the correct decisions on investment have been made.

Project Risk Management:


The commercial dimension
Boyce, Tim

95

ISBN: 978-185418257-9

For full details of any title, and to view


sample extracts, please visit:

www.thorogoodpublishing.co.uk

This briefing will show you how to fully appreciate


all the commercial dimensions of important projects
and understand how to identify all the risks during
the pre-contract bidding phase.

Strategy Implementation Through Project


Management

Surviving a Corporate Crisis:


100 things you need to know

Grundy, Tony

Batchelor, Paul

99

80

ISBN: 978-185418250-0

ISBN: 978-185418208-1

The gap: Far too few managers know how to apply


project management techniques to their strategic
planning. The result is often strategy that is poorly
thought out and executed.

Seven out of ten organisations that experience a


corporate crisis go out of business within 18
months. This briefing not only covers remedial
action after the event but offers expert advice on
preparing every department and every key player
of the organisation so that, should a crisis occur,
damage of every kind is limited as far as possible.

The answer: Strategic project management is a


new and powerful process designed to manage complex projects by combining traditional business
analysis with project management techniques.

Technical Aspects of Business Leases:


Overcoming the practical difficulties
Dowden, Malcolm

THE THOROGOOD PROMISE


If you are not totally satisfied and you return a publication in mint
condition within 14 days of receipt, we will refund the cost of the
publication, no questions asked.

95

ISBN: 978-185418194-7

The purpose of this briefing is to highlight areas where


technical issues might lead to practical difficulties, and
to give clear guidance to help those involved in property management avoid the pitfalls.

FINANCE
Trade Secrets of Business Acquisitions

Tax Planning for Businesses


and their Owners
Hughes, Peter

Pearson, Barrie
95

ISBN: 978-185418334-7

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.

Trade Secrets of Business Disposals


Pearson, Barrie

145

ISBN: 978-185418321-7

If youre like most people, youll only get one chance


to sell your business and to capitalise on years of hard
work and planning. You can either fluff it, or make
sure you get the best possible advisor and become
financially secure for life, and possibly very rich. This
briefing shows you how to make your business
investor-ready for maximum capital return.

145

ISBN: 978-185418366-8

In this invaluable new briefing one of the Citys most


successful deal-makers distils 40 years experience
as both principal and advisor. Losing a deal by
adopting the wrong tactics is unforgiveable he
writes, but it happens all too often. This briefing offers
both professional advisors and principals the opportunity to transform their rate of success, clarifying
hard truths and highlighting avoidable mistakes. It
is laced throughout with proven tactical advice to
ensure that both deals and post-acquisition management are carried out with maximum success.

VAT Liability and the Implications of


Commercial Property Transactions
Buss, Tim

149

ISBN: 978-185418307-1

The option to tax is a major VAT planning tool but


you have got to get the detail right to take full advantage and getting it wrong can be very costly. This
briefing shows you how to plan for maximum advantage and avoid costly mistakes.

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.

THE THOROGOOD PROMISE


If you are not totally satisfied and you return a publication in mint
condition within 14 days of receipt, we will refund the cost of the
publication, no questions asked.

Employee Sickness and Fitness


for Work: Successfully dealing with
the legal system
Howard, Gillian

Discrimination Law and


Employment Issues
Martin, David

ISBN: 978-185418281-4
55

ISBN: 978-185418339-2

The Age Discrimination Act is billed by lawyers as


the most significant change in employment law since
the 1970s. In addition to sex and race discrimination laws, in the last two years employers have also
had to cope with sexual orientation discrimination
and religious discrimination. David Martin, an
expert on employment law and practice, analyses the
practical aspects of dealing with each of the anti-discrimination laws. He demonstrates how to ensure
that paperwork and systems comply totally with the
law, and he provides a range of helpful case studies
to illustrate the key issues and bring them to life.

Effective Recruitment: A practical guide to


staying within the law
Leighton, Patricia & Proctor, Giles

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.

Employment Law Aspects of Mergers and


Acquisitions: A practical guide
Ryley, Michael
ISBN: 978-185418363-7

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

The ways to undertake the task continue to grow,


making the decision as to how best to recruit for a
given employment situation more complex. This specialist text is responding to a number of imperatives,
including legal ones. There have been, and are, anticipated changes that make it essential that recruitment
practitioners act both effectively and within the law.

95

For full details of any title, and to view


sample extracts, please visit:

www.thorogoodpublishing.co.uk

Need it now? Download a PDF of the report


at: www.thorogoodpublishing.co.uk

Navigating Health and Safety Law:


Ensuring compliance and minimising risk

Successfully Defending Employment


Tribunal Cases

Pope, Chris

Hunt, Dennis

95

95

ISBN: 978-185418353-8

ISBN: 978-185418267-8

If you have already been challenged by the insurer,


inspector, or one of your workforce about the status
of your health and safety this briefing will give you a
workable answer to questions like Is my health and
safety policy legally compliant? How do I avoid being
liable for an employees ill health arising from previous employment? Who should carry out safety
inspections is it my responsibility?

Sweeping changes to the way employment tribunal


claims are dealt with have increased the risk of higher
costs and more expensive claims. This indispensable briefing covers all the changes and their
implications for HR professionals.

HR, RECRUITMENT AND TRAINING


Enabling Beyond Empowerment

Applying the Employment Act 2002:


Crucial developments for employers
and employees

Williams, Michael

95

ISBN: 978-185418084-1
Williams, Audrey

95

ISBN: 978-185418253-1

The Act represents a major shift in the commercial


environment, with far-reaching changes for employers and employees. The consequences of getting it
wrong, for both employer and employee, will be considerable financial and otherwise. The Act affects
nearly every aspect of the workplace.

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

ISBN: 978-185418306-4

Dismissal and Grievance Procedures


Hunt, Dennis

95

ISBN: 978-185418376-7

This briefing explains what all the regulations say and


what steps you need to take to operate effective dismissal, disciplinary and grievance procedures. It
covers all the requirements of the Disputes Resolution Procedures that came into effect in October 2004.
It tells you where and when the regulations apply
and what you need to do.

Recent research shows that far too many individuals,


as well as firms, are unaware of flexible working
rights. How employers and employees deal with them
is of crucial and increasing importance to both.
This briefing clarifies the law, sets out the rights of
employer and employee, and offers valuable practical advice on best practice.

For full details of any title, and to view


sample extracts, please visit:

www.thorogoodpublishing.co.uk

HOW TO ORDER

Please see order form at the back of this briefing

Telephone: +44 (0)1235 465 500

Post: Marston Book Services, PO Box 269


Abingdon, Oxon OX14 4YN

Fax: +44 (0)1235 465 556

Web: www.thorogoodpublishing.co.uk

Email: direct.orders@marston.co.uk

New Ways of Working


THE THOROGOOD PROMISE
If you are not totally satisfied and you return a publication in mint
condition within 14 days of receipt, we will refund the cost of the
publication, no questions asked.

How to Turn your HR Strategy


into Reality
Grundy, Tony

85

ISBN: 978-185418183-1

From a diagnosis of HR issues to an analysis of the


external and internal future environment of your company and the effect on your human resources this
is practical information aimed at HR and senior line
managers.

Internal Communications
Farrant, James

95

ISBN: 978-185418149-7

There is growing evidence that the organisations that


get it right reap dividends in corporate energy and
enhanced performance. In these organisations, internal communications have equal status with the
external communications functions. This practical
briefing will show you how internal communications,
taken in their widest sense, can improve the performance of organisations.

Jupp, Stephen

99

ISBN: 978-185418169-5

New ways of working examines the nature of the


work done in an organisation and seeks to optimise
the working practices and the whole context in
which the work takes place. It is more about promoting the best ways of doing things than simple
cost driven change. Although it emphasises the
importance of business and organisation, it spans
the concerns of people, property, technology, community and environment.

Power Over Stress at Work


Araoz, Daniel

99

ISBN: 978-185418176-3

The HR manager can learn how to deal creatively with


stress from the information in this briefing and pass
on their knowledge down the ranks. He or she will
then halt the downward spiral of diffusing stress and
produce a more positive knock-on effect namely
to increase the productivity of the entire workforce
and reduce absenteeism resulting from this terrible
illness.

Reviewing and Changing Contracts


of Employment
Phillips, Annelise; Player, Tom & Rome, Paula

95

ISBN: 978-185418296-8

Mergers and Acquisitions: Confronting


the organisation and people issues
Thomas, Mark

95

ISBN: 978-185418008-7

Why do so many mergers and acquisitions end in


tears and reduced shareholder value? 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.

The Employment Act 2002 has raised the stakes.


Imperfect understanding of the law and poor drafting will now be very costly. This briefing will:

Ensure that you have a total grip on what should


be in a contract and what should not

Explain step by step how to achieve changes


in the contract of employment without causing
problems

Enable you to protect clients sensitive business


information

Enhance your understanding of potential


conflict areas and your ability to manage
disputes effectively.

For full details of any title, and to view


sample extracts, please visit:

www.thorogoodpublishing.co.uk

Trade Secrets of Using e-Learning


in Training
Bray, Tony

Transforming HR
Hunter, Ian and Saunders, Jane
95

ISBN: 978-185418326-2

Definitely not for techies, this briefing is practical


and jargon-free giving you step-by-step skills and
processes to enable you to design effective
e-learning products with confidence.

95

ISBN: 978-185418361-3

The blue-print for the future of HR how to deliver


proven value to your Board, business and colleagues. The briefing is based on interviews with 60
HR leaders from across industry and public and not
for profit sectors. The briefing covers HR outsourcing and shared services.

MARKETING, PR AND SALES


Corporate Community Investment
Genasi, Chris

99

Scott, Simon

ISBN: 978-185418192-3

Supporting good causes is big business and good


business. Corporate community investment (CCI) is
the general term for companies support of good
causes, and is a very fast growing area of PR and marketing.

Defending your Reputation


Taylor, Simon

99

ISBN: 978-185418251-7

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?

Implementing an Integrated Marketing


Communications Strategy
Hart, Norman

Insights into Understanding the Financial


Media: An insiders view

99

99

ISBN: 978-185418083-4

This briefing will help you understand the way the


financial print and broadcast media works in the UK.
It will also provide you with techniques and guidelines on how to communicate with the financial media
in the most effective way, to help you achieve accurate and positive coverage of your organisation and
its operations.

Lobbying and the Media: Working with


politicians and journalists
Burrell, Michael

99

ISBN: 978-185418240-1

Lobbying is an art form rather than a science, so there


is inevitably an element of judgement in what line
to take. The best lobbying is always based on accurate, up-to-date information and on a well-argued
case, founded on credible evidence, and delivered to
the right audiences in the right tone of voice at the
right time. Sounds simple, but it isnt. This expert
briefing explains the knowledge and techniques
required.

ISBN: 978-185418120-6

Get ahead and stay ahead of your competition


through better integration of your marketing communications. Norman Hart was an international
consultant, lecturer and author on marketing, advertising and public relations. His books included The
CIM Marketing Dictionary, Strategic Public Relations,
The Practice of Advertising and Industrial Marketing Communications.

THE THOROGOOD PROMISE


If you are not totally satisfied and you return a publication in mint
condition within 14 days of receipt, we will refund the cost of the
publication, no questions asked.

Managing Corporate Reputation:


The new currency
Dalton, John & Croft, Susan

professionals who wish to sell their services successfully and to feel comfortable doing so.
95

Strategic Customer Planning


ISBN: 978-185418272-2
Melkman, Alan & Simmonds, Ken

ENRON, WORLDCOM who next? At a time when


trust in corporations has plummeted to new depths,
knowing how to manage corporate reputation professionally and effectively has never been more
crucial. This briefing shows you how to:

Develop PR, brands and relationship management as the vanguards of your corporate
reputation

Strengthen your internal as well as external


communications

stakeholders

Practical Techniques for Effective


Lobbying
Miller, Charles

95

ISBN: 978-185418089-6

Understanding the system and the process in which


it works is essential to lobbying effectively. Uncoordinated, uncontrolled and badly planned approaches
will do more harm than good, and risk antagonising the people you most want to influence. This
briefing provides the techniques required for effective lobbying.

Public Affairs Techniques for Business


Wynne-Davies, Peter

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.

Strategic Planning in Public Relations


Knights, Kieran

Improve the effective management of your

95

ISBN: 978-185418175-6

This briefing shows in practical terms how you can


counter potential threats through a professionally
structured and implemented public affairs campaign. Todays successful companies recognise that
in order to survive and prosper a comprehensive and
disciplined approach to public affairs is no longer
just a useful asset, it is now a necessity.

Tips and techniques to aid you in a new approach


to campaign planning. Strategic planning is a fresh
approach to PR. An approach that is fact-based and
scientific, clearly presenting the arguments for a campaign proposal backed with evidence. This briefing
provides valuable tips and techniques to improve
your PR and campaign planning.

Successful Competitive Tendering


Woodhams, Jeff

95

ISBN: 978-185418235-7

To win business, you must make a convincing case.


This briefing will help you become more skillful, and
more successful in your tendering.

Techniques for Ensuring PR Coverage in


the Regional Media: An insiders view
Imeson, Mike

99

ISBN: 978-185418019-3

This in-depth briefing will give you the tools and


techniques you need to enjoy the opportunities
offered by the regional and local media. It offers you
practical guidance and advice on how to apply them
with maximum effect for your next PR campaign.

99

ISBN: 978-185418179-4

Many professionals still feel awkward about really


selling their professional services. They are not
usually trained in selling. This is a much-needed briefing which addresses the unique concerns of

99

ISBN: 978-185418225-8

Selling Skills for Professionals


Tasso, Kim

95

For full details of any title, and to view


sample extracts, please visit:

www.thorogoodpublishing.co.uk

Order Form
FIVE WAYS TO ORDER:
Email: direct.orders@marston.co.uk
Tel:

+44 (0)1235 465 500

Post: Marston Book Services, 10-12 Rivington Street,


London EC2A 3DU

Fax:

+44 (0)1235 465 556

Web: www.thorogoodpublishing.co.uk

Title

ISBN

Price Authors

Commercial Contracts: Drafting techniques and precedents

978-185418271-5 169

Ribeiro, Robert

Commercial Litigation: Damages and other remedies


for breach of contract

978-185418397-2 169

Ribeiro, Robert

Corporate Governance

978-185418354-5 85

Martin, David

Email: Legal issues

978-185418256-0 80

Singleton, Susan

Freedom of Information Act

978-185418347-7 95

Singleton, Susan

International Commercial Agreements

978-185418286-9 95

Attree, Rebecca

Insights into Successfully Managing the


In-house Legal Function

978-185418174-9 95

OMeara, Barry

Software Contract Agreements

978-185418146-6 80

Bond, Robert

Achieving Business Excellence, Quality and


Performance Improvement

978-185418018-6 95

Chapman, Colin
& Hopper, Dennis

The Commercial Exploitation of Intellectual


Property Rights by Licensing

978-185418285-2 95

DesForges,
Charles

Intellectual Property Protection and Enforcement

978-185418054-4 159

Brazell, Lorna

Waste Management: The changing legislative climate

978-185418367-5 80

Hand, Caroline

Websites and the Law

978-185418331-6 80

Singleton, Susan

A Practical Guide to Knowledge Management

978-185418230-2 99

Brelade, Sue
& Harman, Chris

Analyse your Business A performance health check

978-185418170-1 89

OConnor, Carol

Tendering & Negotiating MoD Contracts

978-185418276-0 95

Boyce, Tim

Understanding SMART Procurement in the MOD

978-185418164-0 69

Boyce, Tim

IT Governance

978-185418371-2 169

Norfolk, David

Practical Techniques for Effective Project


Investment Appraisal

978-185418099-5 99

Tiffin, Ralph

Project Risk Management: The commercial dimension

978-185418257-9 95

Boyce, Tim

Strategy Implementation Through Project Management

978-185418250-0 99

Grundy, Tony

Surviving a Corporate Crisis: 100 things you need to know

978-185418208-1 80

Batchelor, Paul

Technical Aspects of Business Leases:


Overcoming the practical difficulties

978-185418194-7 95

Dowden,
Malcolm

Tax Planning for Businesses and their Owners

978-185418334-7 95

Hughes, Peter

Trade Secrets of Business Disposals

978-185418321-7 145

Pearson, Barrie

Qty

THE THOROGOOD PROMISE


If you are not totally satisfied and you return a publication in
mint condition within 14 days of receipt, we will refund the
cost of the publication, no questions asked.

Title

ISBN

Price Authors

Trade Secrets of Successfully Acquiring


Unquoted Companies

978-185418366-8 145

Pearson, Barrie

VAT Liability and the Implications of


Commercial Property Transactions

978-185418307-1 149

Buss, Tim

Data Protection Law for Employers

978-185418283-8 80

Singleton, Susan

Discrimination Law and Employment Issues

978-185418339-2 55

Martin, David

Effective Recruitment:
A practical guide to staying within the law

978-185418303-3 85

Leighton, Patricia
& Proctor, Giles

Employee Sickness and Fitness for Work:


Successfully dealing with the legal system

978-185418281-4 95

Howard, Gillian

Employment Law Aspects of Mergers and Acquisitions:


A practical guide

978-185418363-7 95

Ryley, Michael

Navigating Health and Safety Law:


Ensuring compliance and minimising risk

978-185418353-8 95

Pope, Chris

Successfully Defending Employment Tribunal Cases

978-185418267-8 95

Hunt, Dennis

Applying the Employment Act 2002:


Crucial developments for employers and employees

978-185418253-1 95

Williams, Audrey

Dismissal and Grievance Procedures

978-185418376-7 95

Hunt, Dennis

Enabling Beyond Empowerment

978-185418084-1 95

Williams, Michael

Flexible Working

978-185418306-4 95

Williams, Audrey

How to Turn your HR Strategy into Reality

978-185418183-1 85

Grundy, Tony

Internal Communications

978-185418149-7 95

Farrant, James

Mergers and Acquisitions: Confronting the organisation


and people issues

978-185418008-7 95

Thomas, Mark

New Ways of Working

978-185418169-5 99

Jupp, Stephen

Power Over Stress at Work

978-185418176-3 99

Araoz, Daniel

Reviewing and Changing Contracts of Employment

978-185418296-8 95

Phillips, Annelise;
Player, Tom &
Rome, Paula

Trade Secrets of Using e-Learning in Training

978-185418326-2 95

Bray, Tony

Transforming HR

978-185418361-3 95

Hunter, Ian and


Saunders, Jane

Corporate Community Investment

978-185418192-3 99

Genasi, Chris

Defending your Reputation

978-185418251-7 99

Taylor, Simon

Implementing an Integrated Marketing


Communications Strategy

978-185418120-6 99

Hart, Norman

Insights into Understanding the Financial Media:


An insiders view

978-185418083-4 99

Scott, Simon

Lobbying and the Media: Working with politicians


and journalists

978-185418240-1 99

Burrell, Michael

Managing Corporate Reputation: The new currency

978-185418272-2 95

Dalton, John &


Croft, Susan

Qty

For full details of any title, and to view


sample extracts, please visit:

www.thorogoodpublishing.co.uk

Title

ISBN

Price Authors

Practical Techniques for Effective Lobbying

978-185418089-6 95

Miller, Charles

Public Affairs Techniques for Business

978-185418175-6 95

Wynne-Davies,
Peter

Selling Skills for Professionals

978-185418179-4 99

Tasso, Kim

Strategic Customer Planning

978-185418388-0 95

Melkman, Alan
& Simmonds, Ken

Strategic Planning in Public Relations

978-185418225-8 99

Knights, Kieran

Successful Competitive Tendering

978-185418235-7 95

Woodhams, Jeff

Techniques for Ensuring PR Coverage in


the Regional Media: An insiders view

978-185418019-3 99

Imeson, Mike

YOUR DETAILS
Please note that payment is required before briefings
are dispatched. If paying by credit card, the address
given below must be that of the cardholder.
Please use BLOCK capitals.
Name______________________________________________________
Position ___________________________________________________
Company _________________________________________________

Qty

PAYMENT DETAILS
I enclose a cheque for _______________ made payable
to MARSTON BOOK SERVICES
Please invoice me
Please charge my credit card
Mastercard
Visa
Barclaycard

American Express
Switch
Connect

Card no. __________________________________________________

____________________________________________________________

Expiry date _______________________________________________

Address __________________________________________________

Valid from ________________________________________________

__________________________________________________________________

Issue number _____________________________________________

__________________________________________________________________

Cardholders signature ___________________________________

__________________________________________________________________

Postcode __________________________________________________
Country __________________________________________________
Tel ________________________________________________________
Fax ________________________________________________________
Email _____________________________________________________

I have paid by bank transfer [BACS]: Barclays Bank,


sort code 20-65-18, account ___________________________
POSTAGE AND PACKAGING

UK: Postage and packaging is FREE


OVERSEAS: 10 for the first copy and 5 for each
additional copy
Please quote reference: Briefing when purchasing

Need it now? Download a PDF of the report


at: www.thorogoodpublishing.co.uk

This page is left blank intentionally

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
10-12 Rivington Street
London
EC2A 3DU

t: 020 7749 4748


f: 020 7729 6110
e: info@thorogoodpublishing.co.uk
w: www.thorogoodpublishing.co.uk