There have been a number of contradictory claims made by politicians and in the media as to where our employment laws and worker protection come from, and whether they are European or home grown. Which is correct?
The fact is that, while some come from the EU, and some are domestic, they can often be a mixture of the two, whether they are domestic laws which have then been expanded by Europe, or European laws which are then made more generous by Parliament. There is also the impact of the European Court of Justice, which has helped to reinterpret some elements which were not in British law.
It should first be clarified that the European Convention on Human Rights, which forms the basis of the Human Rights Act, has nothing to do with the European Union. It arises instead as a result of the UK’s membership of the Council of Europe, which we have been in since its inception in 1949. A ‘leave’ vote will have no effect on this. Even if eventually the Conservative government decides to do away with the Human Rights Act 1998, the UK will still be a member of the Council of Europe and still subject to the Convention, unless we also leave the Council of Europe.
There was very little employment legislation before the 1960s or 70s. Around the time that the UK joined the Common Market, more effective domestic anti-discrimination legislation began to appear, such as prohibiting sex and race discrimination, promoting equal pay, and protecting some ex-offenders. Parliament also brought in legislation allowing claims for unfair dismissal and redundancy (collective consultation is EU-based), and protecting health and safety (although this has also since been supplemented by the EU). Provision was also eventually made against deductions from wages, and for sick pay and guarantee pay.
In the 1980s, the Thatcher government brought in the main wave of trade union legislation, which has been amended over the years. The law here is also influenced by the European Convention on Human Rights.
The 1990s brought more anti-discrimination legislation, in the shape of the Disability Discrimination Act, and also Labour’s minimum wage and whistleblowing laws, which are some of the few pieces of employment legislation not to have some European input.
It is difficult in many cases to say that a piece of legislation is purely domestic or purely EU.
More recent years have seen an expansion of family-friendly rights. While many of these have been extended by the EU, the UK did have some maternity legislation to start with, although this originally required the employee to have been employed for a certain length of time first. The extension of paternity leave and adoption leave, as well as shared parental leave and the right to request flexible working are also domestic.
The EU (as it is now) in the meantime also had very little to start with, apart from the principle of equal treatment between men and women. In parallel with domestic law, it developed laws relating to equal treatment and equal pay (which expanded domestic equal pay law by adding the concept of work of equal value), and brought in the idea of transfer of undertakings, which has now been slightly expanded by domestic legislation.
In the 1980s and 1990s the European Court of Justice (ECJ) and the legislature helped to improve domestic discrimination law by protecting pregnant women, and an ECJ decision also led to the amendment of UK law to protect transsexual people.
Further European social legislation was then passed, bringing in protection for fixed-term workers, part-time workers, and eventually agency workers. The working time legislation also derives from Europe. Further anti-discrimination legislation also followed, such as for sex, race, and disability, much of which we already had.
One illustration of how the EU has helped to improve worker protection in this period is that of sexual orientation discrimination. For many years, campaigners and lawyers asked judges to interpret the Sex Discrimination Act 1975 to protect gay people, but the courts were not able to do so. It was not until the European Framework Directive of 2000 that gay people were protected. Similarly, the Directive also covered religious discrimination, which again British lawyers had argued could fit into the Race Discrimination Act 1976, but to no avail. It was therefore not until the Directive was implemented by the UK that sexual orientation and religious discrimination were prohibited, in addition to age discrimination.
The EU has also expanded maternity and pregnancy protection, rights in relation to parental leave, and gave people the right to time off for dependants and in emergencies.
We can therefore see that Employment law as it stands is a thorough mixture of the two types of law, with worker protection coming from both sides. In addition, although some of it originated domestically, and some from the EU, many pieces of legislation have been amended by each side, and so it is difficult in many cases to say that a piece of legislation is purely domestic or purely EU.
(Note that although I have used UK for short, the law in Northern Ireland and sometimes Scotland may differ to that of England and Wales.)
Featured image credit: European Court of Justice (ECJ) in Luxembourg with flags by Cédric Puisney. CC-BY-2.0 via Wikimedia Commons.