![[Basket]](images/basket.png){kind=small}
Your order![[cover image]](images/issue/BK201606.jpg)
European Union law
[ch 1: pages 23-24]The UK must comply with European Union law, and UK law must be interpreted so as to comply with European Union law as far as possible. The Court of Justice of the European Union (ECJ) deals with the interpretation of European law, and its decisions are binding on all courts and tribunals in the UK, even where the case involves another EU state.
EU law directives have been issued in a wide variety of areas affecting employment rights, including:
• Business transfers (see Chapter 12);
• Public procurement (see Chapter 12);
• Redundancy consultation (see Chapter 11);
• Rights on an employer’s insolvency (see Chapters 11 and 12);
• Information and consultation (see Chapter 5);
• Equal pay and equal treatment (see Chapter 7);
• Agency workers (see Chapter 2);
• Part-time workers (see Chapter 2);
• Fixed-term employees (see Chapter 2);
• Working time (see Chapter 4);
• Free movement of labour;
• Posted Workers (see Chapter 2);
• Equal access to social security benefits;
• Health and safety at work (see the LRD’s annual publication, Health and Safety Law www.lrdpublications.org.uk/publications.php?pub=BK&iss=1782); and
• Data protection (see Chapter 3).
In some circumstances, public sector workers can bring claims in the UK based on EU law even if regulations have not yet been made in the UK to fully enact the relevant EU directive. The process of relying on rights laid down in European Union law is known as “direct effect”. To claim direct effect, the right under EU law must be precise.
Where UK regulations are based on an EU Directive, employment tribunals are expected to adopt a broad and liberal (as opposed to a literal or restrictive) approach when interpreting their meaning, so as to achieve the Directive’s broad aims, even adding or deleting words from the regulations when necessary, as long as the final result is still consistent with the original purpose of the UK law (Marleasing S.A. v La Comercial International de Alimentacion S.A. [1990] EUECJ C-106/89). When a court or tribunal is unsure whether UK law has implemented an EU directive correctly, it can refer the question to the ECJ for a final ruling. The ECJ usually takes many months to reach a decision. It is assisted by a senior legal officer, the Advocate General (AG) of the ECJ. Before the ECJ gives its ruling, the AG publishes a written opinion on the issues. The ECJ is not bound to follow the AG’s opinion but it usually does.
European law only applies from the date on which the member state should have enacted the relevant Directive into national law, and not before (Walker v Innospec, Ministry of Justice v O’Brien [2015] EWCA 1000).
Employment law and the EU referendum
This booklet goes to press shortly before the United Kingdom referendum on remaining within the European Union, to take place on June 23, 2016. The referendum has generated considerable uncertainty in the context of employment law, especially since many of our employment laws, including rights to paid annual leave, time off for ante natal appointments, fair treatment for part-time workers, trade union information and consultation when redundancies are threatened, health and safety rights and protection following a business transfer, are based on EU Directives.
In the event of a vote to leave, the EU treaty sets out a mechanism for withdrawal by a member state under which the UK would give formal notice of its decision to leave, followed by a period of negotiation to agree the terms of withdrawal. The treaty provides for a minimum of two years before a member state can leave. The complexity of the issues to be resolved suggests that a longer period is likely to be necessary, with transitional arrangements. The UK government would control the timing of the decision to give notice to leave.
In the event that the UK does finally leave the EU, rights that are based on EU Directives — such as the statutory working time rights — will not simply fall away. Instead, the UK regulations will remain in place until they are withdrawn or modified by the UK government. The extent of future change would depend on the politics of a future UK government.
In some cases, individuals will have separate private contractual rights that match or exceed the original European right. These will remain in place until they are changed. Any change must be by agreement.
Another key area of uncertainty for employers and workers is the European Union right to freedom of movement. In theory, a decision to leave would end the right for citizens of other EU member states to travel to and work in the UK (and vice versa for UK citizens in the EU), again after a transition period. In practice, this issue would have to form part of the negotiations for a new relationship with the EU.
A “Brexit” vote would have important constitutional implications for the devolved nations if a majority of their populations vote in a different way from England, including implications for the employment law regime of each country.