Analysis
The area of employment is a rich vein of cases and
legislation in the field of European Union studies. This is due
to employment being key to the founding economic rationale for
the EU, and the wide scope for disparity of implementation
between member states when enacting labour-based legislation, issued in the form of a Directive.
The first two question in this section are aimed towards UK
respondents only. But due to the case law introduced by EU
involvement, the issues will have EU-wide application. The
central issue is equalisation between men and women as to the
age of retirement, and whether such can be compulsory.
Historically the retirement age in the UK has been 65 for men
and 60 for women. However, as of 6 April 2010 the retirement
age for women will be incrementally increased to equalise with
that of men (by 2020). The equalised age, will then
progressively rise over the coming decades.
Question A asks whether this equalisation at 65 is fair on
both men and women, 89% of respondents thought that it was. Of
the remaining 11% it could be that some thought the
differential should remain, while others thought that the
equalisation should be reduced to 60 – but this is
speculation as we do not have any evidence on which to propose
the rationales of those disagreeing. The decision on
equalisation appears to have been an independent one for the
government of the UK – based on the increased burden on
social security in having women retire at 60. However, it
cannot help but be informed by Barber v GRE,
which was referred to the European Court of Justice. Here the
court found that, in line with art 141 (formerly art 119) of
the EC Treaty, men could not be discriminated against in
pension rights based on age: that is they should receive the
same benefits as a woman of the same age.
For question B it is relevant that while a state regulated,
default retirement age does not compel employers to act (if
they opt to retain the employee), the employee can be compelled
to leave their employment. The effect is that employers have
discretion in this matter, but employees lose many of their
employment rights (eg security of employment and redundancy –
but not unfair dismissal). Consideration of state retirement
ages in the UK has been elevated to the European Court of
Justice (ECJ), in a case brought before the High Court (and
referred to the ECJ) by Age
Concern – alleging discrimination on the basis of age.
Responding to the case the ECJ said that differential treatment
of individuals was permitted under the legislation, if this
was:
“[J]ustified by legitimate social policy
objectives, such as those related to employment policy, the
labour market or vocational training.”
This effectively reiterated the provisions of art 6(1) of
Directive 2000/78/EC
– Equal treatment in employment and occupation. Further it
found that the decision on whether the retirement regime in the
UK was within the scope of these criteria was a matter for the
national court.
The Guardian reports that hundreds of unfair dismissal
claims hang on the outcome
as it returns to the High Court. But there are no further
recorded court decisions on this matter – Age Concern states
that the government is reviewing policy in this area.
This ruling by the ECJ potentially creates a lacuna in UK
law: on the one hand the government is encouraging the over 65s
to stay on in employment and providing legislation to prevent
discrimination on the basis of age,
on the other these same employees lose many of their employment
rights. No legislation exists for the decision of an employer
(to enforce the default retirement age of an employee) to be
objectively justified before a court. Due to the statutory
nature of these provisions it is not open to the courts to
develop a Common Law rule of interpretation.
Questions C-F all concern the regulation of employee working
hours, which is provided by Directive 2000/34/EC
and implemented in the UK Working Time (Amendment) Regulations
2003. This area
provides one of the few controversies in the survey and a real
difference of opinion between UK and EU respondents. This is
summed-up in question C, which asks whether employee working
hours should be regulated, at all. Of the EU respondents 80%
thought regulation was necessary, while in the UK the
respondents were equally split. We have no explanation of this
split in UK opinion, other than to note that quite a large
proportion of respondents were self employed. But, the
regulations in this area do not apply to that section of the
workforce.
However, what is clear is that once a health and safety
motive is introduced into the concept of regulating working
hours, support for regulation substantially increases – as is
illustrated in question D where 76% of UK respondents would
support the regulation of the working hours of junior doctors.
Support for regulation based on health and safety concerns also
increased from the EU respondents. However, this measure has
not proved uncontroversial in the UK, with claims from the
Royal College of Surgeons that such restrictions limit the availability of surgeons to patients and
that doctors are pressurised to falsify the records of their
working hours.
When asked to identify the source of working hours
regulations in question E, 65% of UK respondents and 52% of EU
respondents correctly selected the European Union. When
subsequently asked whether the EU should be involved in such
regulation, in question F, 63% of UK respondents and 88% of EU
respondents answered in the affirmative.
This portion of questions sends mixed signals about EU
involvement in the regulation of working hours by the EU from
the UK respondents – for the EU respondents introducing the
European Union into the question has no effect upon their
support for the measure. From a 50:50 split in question C the
UK respondents come around to supporting regulation in question
D with a slight drop in support in question F. One conclusion
might be that UK respondents do not support a general cap on
working hours, but do support regulation on working hours if
this can be objectively justified as a health and safety
measure. When it comes to involvement by the EU they continue
to support a health and safety motive, but there is some swing
away from EU regulation on the issue.
Questions G-J address women’s rights in the workplace.
From a UK perspective much of the equality law that has been
developed in this area has an origin in the European Union.
What originally started as a set of economic measures, to
ensure a level playing field between employers in different
member states (where women’s rights may have greater
recognition in one state than in another), has arguably become
a large-scale social measure intruding into the competence of
the member states. The requirement for this type of measure is
justified by the need to avoid the “social dumping” effect
of businesses moving from one member state to another in order
to benefit from “cheaper” labour law regimes.
The underlying foundation for these measures in the EU is
art 141 of the EC Treaty, which provides for equal pay of men
and women, the Equal pay Directive (75/117/EEC)
and the Equal Pay Act 1970.
Several other pieces of EU legislation also effect the position
of women in the workplace, either directly or indirectly. These
include the areas of pregnancy and maternity leave (Directive
92/85/EC),
equal treatment (Directive 76/207/EEC),
parental leave (Directive 96/34/EC)
and part time work (Directive 97/81).
In question H the respondents overwhelmingly support women
receiving equal pay for completing the same work as men.
However, the regulations go deeper than this, they actually
demand equal pay for work of equal value.
The case law in this area illustrates the issues at hand. In
Garland v British Rail (1982)
male employees continued to receive concessionary travel
benefits after retirement, whereas female employees lost that
benefit. The ECJ ruled
that this was in contravention of art 141 EC Treaty (formerly
art 119) since pay included “any other consideration”,
and that the provisions conferred a directly enforceable right
upon the the claimant.
Similarly, in MacCarthys v Smith
(1980), the ECJ found that a woman was entitled to the same pay
in her role as stockroom manager as her male predecessor –
even though he had left four months prior to her appointment
and thus they had never served the employer contemporaneously.
Questions I and J refer to Directive 2002/73/EC (amending Directive 76/207/EEC),
providing for the protection of pregnant women in the workplace
and maternity leave. A curious element of the results from the
EU respondents in questions of equality and protection during
pregnancy (G-I) is that they are consistently less than
unanimous – where in the question of maternity leave (J) they
are 100% in favour. The researchers can only take this to mean
that the EU respondents require extra benefits for women in the
workplace compared to men – in order to realise de facto
equality. This possible meaning in the results reflects the
doctrine of “difference”, or “recognition”, in
equalities theory, whereby some elements in society are
identified as requiring additional help in order to benefit
from the rights granted to them. This doctrine is recognised in
EU law via art 7 (Positive action) Directive 2000/78/EC,
which seeks to combat discrimination in the workplace based on
“religion or belief, disability, age or sexual orientation”
and art 5 Directive 2000/43/EC
which seeks to enable equal treatment based on ethnic origin
and race.
Questions K and L refer to the rights of part time,
temporary and agency workers. Arguably the role of the EU has
been reinforced in this area due to the perception that this
category or workers are disproportionately female, and require
extra protection in law. There are many pieces of legislation
in this area including the Temporary and Agency Workers
Directive (2008/104/EC)
and the Working Time Directive (93/104/EC amended by Directive: 2003/88/EC).
Directive 93/104/EC was implemented in the UK by The Working
Time Regulations 1998, but the latter
inserted a 13 week qualifying period for paid leave
entitlement (this issue illustrates the disparities that creep in when national legislation is transposed from Directives).
This provision was challenged in Secretary of State for
Trade and Industry ex parte: Broadcasting, Entertainment,
Cinematographic and Theatre Union (BECTU),
where the ECJ ruled that this qualifying period was unlawful.
The UK was consequently compelled to amend the regulations so
that paid leave entitlement accrued immediately upon
employment.
There are several issues at play in this decision. Prompting
the UK’s qualifying period for paid leave entitlement is the
idea of having a more flexible workforce. Accompanying this is
the notion that many temporary and agency workers receive
better pay than full time workers (which may be true in some
sectors) – which may encourage the idea that they should not
have the same rights as full time employees. On the other hand
many temporary and agency workers are employed on low wages in
unskilled sectors – which may leave them open to exploitation
by some employers. Examples of the sharp practices used by
employers in this field include cleaners employed to clean
schools who were not retained during end of term and half term
holidays – and thus never worked for 13 continuous weeks and
were unable to qualify for paid leave.
Respondents to questions K and L from the EU gave an 80%
backing to equality for part time, temporary and agency
workers, and to the EU being involved in the regulation of this
area. In comparison 65% of UK respondents answered positively
for question K and for question L were split 50:50 – one of
the few controversial issues in the entire survey.
Finally, question M asks whether the EU should be involved
in developing anti-discrimination legislation applicable in the
workplace (which are discussed above). Again the EU respondents
gave such measures a positive vote (80%), with the UK
respondents a little behind on 67%. Overall this does tend to
show some bias against the EU from the UK participants.
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