European Union law



The UK must currently comply with European Union (EU) law, and UK law must be interpreted to comply with EU law as far as possible. The ECJ deals with the interpretation of EU law, and its case law decisions bind all courts and tribunals in the UK, even where the case involves another EU state.




The UK’s referendum vote to leave the EU will impact directly on the jurisdiction of the ECJ, but its long-term implications remain uncertain until the terms of leaving have been negotiated. Whatever happens, the UK remains bound by all rulings of the ECJ until 29 March 2019 (that is, two years from 29 March 2017, which was the date on which the government triggered Article 50 of the Lisbon Treaty). In practice, ECJ rulings are likely to be relevant in some way for many years to come (see box on pages 18-21).



EU Directives and Regulations 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);



• Right to a written statement of employment particulars (see Chapter 3);



• 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);



• Data protection and privacy at work (see Chapter 15).




EU member states are required to make regulations under national law to implement EU Directives by a set deadline. In some circumstances, claims can be brought in the employment tribunal based on an EU Directive even if regulations have not been made in the UK to fully enact the relevant EU directive, in a process known as “direct effect”. To claim direct effect, the right under the EU Directive must be precise. EU Regulations (as opposed to Directives) take effect immediately without the need for the member state to enact national law. An example is the General Data Protection Regulation, which comes into force in the UK on 25 May 2018 (see Chapter 15: Data Protection).


Where UK regulations are based on EU law, tribunals must adopt a broad and liberal (as opposed to a literal or restrictive) approach to interpretation, in order to achieve the broad aims of the relevant EU law. This can even involve adding or deleting words when necessary.



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, helped by senior legal officers known as Advocates General (AG), appointed from different member states. Before the ECJ gives its ruling, the AG publishes a written opinion on the issues. The ECJ is not bound to follow an AG’s opinion, although it usually does.