The possible impact of leaving the EU on UK employment law
Author: Darren Newman
Consultant editor Darren Newman looks at three recent ECJ cases potentially impacting on UK employment law, and speculates on what a UK exit from the EU - and the ECJ's jurisdiction - could mean for UK employment law.
As the debate on whether the UK should leave or remain in the EU hots up, it is worth thinking about just how "Brexit" could affect the UK employment law landscape.
The influence of EU law is wide reaching - so much so that it is easier to look at those areas of employment law that are the sole province of the UK rather than to list all of those that have their roots in EU law. Unfair dismissal law is a UK creation as is the national minimum wage and the right to a redundancy payment.
Almost every other area of UK employment law - discrimination, family leave, TUPE, atypical work, collective consultation, agency workers and working time - is based on EU law. Britain's membership of the EU means not only that we must implement laws in these areas but also that the interpretation of our law is subject to the rulings of the European Court of Justice (ECJ). Importantly, if there is a conflict between the Court's interpretation of a Directive and the way in which it has been implemented in the UK, the Court's interpretation must prevail. In recent years the UK courts have become more and more willing to rewrite the words of statute in order to make sure that it does.
Leaving the EU would not, however, mean that all of these laws would simply go away. For example, it is inconceivable that any UK Government would choose to repeal discrimination law or maternity leave just because it was no longer bound by EU rules. Even a more controversial measure like TUPE might well survive as so much of our contracting industry operates on the basis that employees can simply be transferred to a new employer when a service contract changes hands. A Conservative Government would certainly want to do something in relation to the Working Time Regulations 1998 (SI 1998/1833), but it is difficult to see any government repealing the right to take paid annual leave.
In any event, wholesale reform takes time. Dismantling the EU law in the UK would be a complicated and drawn-out process. One immediate change, however, would be that UK law would no longer be directly affected by the decisions of the ECJ. The potential significance of this change is illustrated by three decisions that have emerged over the summer from Spain, Greece and Bulgaria, each of which may prove to have an important influence on the way in which UK law is applied.
In Federación de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL and another [2015] IRLR 935 ECJ, the ECJ held that the working time of a group of Spanish technicians with no fixed place of work included the time spent travelling from home to an assignment. This ruling does not come as much of a surprise and, while employers with field staff with no fixed place of work will need to review what they include as working time in relation to the maximum working week, it should be remembered that the case affects only the interpretation of the Working Time Regulations 1998 - it has nothing to do with the minimum wage. The Court makes it clear that the issue of payment is entirely one for member states. As it happens, the National Minimum Wage Regulations 2015 (SI 2015/621) make specific provision for travel time. Travel during the working day must count, but travel from home to the worker's first assignment does not. That position remains unaffected by this decision.
Perhaps more significant is a case involving Bulgarian electricity meters. In CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia C-83/14 ECJ, the ECJ held that placing electricity meters at an inconvenient height in parts of a town with a majority Roma population - which made it harder to get an accurate reading, but also harder to tamper with the meter - could be indirect race discrimination. Importantly, the claim was brought by someone who was living in the area affected but who was not herself of Roma origin. The ECJ held that this did not matter. If the practice amounted to indirect discrimination, anyone adversely affected by it was entitled to claim. This ruling directly contradicts s.19 of the Equality Act 2010, which limits indirect discrimination claims to those who share a protected characteristic with the disadvantaged group. We can therefore expect to see a case in the near future where, for example, a man refused a chance to work flexibly because the employer has a practice of requiring full time work brings an indirect discrimination claim on the basis that the requirement to work full time places women at a particular disadvantage. Whether or not the UK courts will feel able to ignore the clear meaning of s.19 as passed by Parliament will be an interesting test of the supremacy of EU law.
Finally, the Court ruled in Maïstrellis v Ypourgos Dikaiosynis, Diafaneias Kai Anthropinon Dikaiomaton [2015] IRLR 944 ECJ that a Greek judge who sought to take extended parental leave when he became a father was discriminated against by a rule that allowed a man to take such leave only if the mother of his child was in work. Mr Maistrellis's wife was not working so his employer took the view that it was her job to provide childcare. However, the ECJ noted that a woman who gives birth is always entitled to leave without any question about the status of the father, so the refusal of parental leave in this case amounted to sex discrimination. It is possible that this case will bring into question the rules on shared parental leave, which allow the father to take leave only when the mother qualifies for maternity leave.
As these cases demonstrate, UK employment law is shaped by issues arising across the whole of Europe. However, while Brexit would mean that the UK was no longer directly affected by ECJ decisions, achieving a clean break would be by no means straightforward. Would, for example, the UK courts continue to consider themselves bound by past decisions of the ECJ? If some of the legislation based on EU law stayed, what would happen to the decades of case law telling us what the legislation means? Could the UK courts continue to look to the ECJ as it interprets the Directives on which the UK law was initially based? Over the last 40 years, EU law has become thoroughly intertwined with UK law and uncoupling ourselves from EU employment law would be a long and complicated process. Simply dropping out of the EU may not prevent the UK courts from taking note of Spanish technicians, Greek judges or Bulgarian electricity meters.
