Who needs European Employment Rights


I logged into Twitter and someone had posted this image into my timeline. My eyes nearly rolled out of their sockets. The Brexit debate could scarcely be said to have been characterised by the accuracy and honesty of the arguments advanced, but this seems to me to be very seriously misleading.

I am going to deal with each of the points made. But two general points can be made immediately. First, the EU does not have the power to regulate Employment Rights generally. It is perverse to criticise the EU for not creating a right to a minimum wage where Member States have been scrupulous to ensure it does not have the power to do so. Second, the EU law sets a floor not a ceiling. There is nothing to stop the UK having more generous rights whilst remaining a member of the EU. The only thing continued membership prevents is having less generous rights.

Right to Holidays

The Holidays with Pay Act 1938 did not create a general right to paid holiday. It applied only to those workers who had their minimum wages set by a wage regulating authority (section 1(1)). Any worker whose pay was fixed under the Trade Boards Act 1909 and 1918 or the Agricultural Wages (Regulation) Act 1924 were not to be entitled to more than a week’s paid leave in each year and the former were not to be allowed to take more than three consecutive days of leave (Section 1(2)).

The relevant part of the Act was repealed in 1975. By 1997 there was no statutory right to paid annual leave (unless you were an agricultural worker). That position changed as a result of the Working Time Regulations 1998. The Regulations were intended to implement the Working Time Directive 93/104/EC.

The Directive created a right to four weeks’ annual leave.

The UK fought tooth and nail against the introduction of the Directive. It went to the European Court of Justice in an attempt to get it annulled. The attempt failed (see United Kingdom v Council of the European Union C-84/94).

It is true that the UK subsequently increased the entitlement by 1.6 weeks. The reason for the increase was that UK employers had insisted that bank holidays should count towards the four week entitlement. The significant point here is, as stressed above, that the Directive does not prevent the UK being more generous. It does, however, prevent the UK being less generous. It sets a floor not a ceiling.

So in Bear Scotland Ltd v Fulton UKEATS/0047/13, the Employment Appeal Tribunal made the latest in a series of findings that the UK had failed properly to implement the entitlement to paid annual leave. The Working Time Directive was used to bring the rights of UK workers up to the standard that applies across Europe. Without the Directive, UK workers would have had less protection.

Equal Pay

Should we pat ourselves on the back for having legislated for equal pay before even joining the EEC? In short, no.

The right to equal pay was enshrined in Article 119 of the Treaty of Rome itself, which was signed in … 1957. That meant that we were going to have to legislate if we wanted to join.

Although the Equal Pay Act was enacted in 1970, it was not in force in 1973 when the UK joined the EEC. In fact, it did not come into force until December 1975. By then the Equal Pay Directive 75/117/EEC was in place. It required a substantial broadening of the right so that it covered cases where men and women were performing work of equal value. Again, Europe enhanced the rights of UK workers.

A number of subsequent decisions identified respects in which the Domestic legislation had failed properly to implement the European right. One example was the fact that the 1970 Act limited back pay claim to two years. That was held to be inconsistent with European Law and extended to 6 years.


Couldn’t the EU be more generous in respect of Maternity Leave? Couldn’t it set a minimum rate of pay?

In 2010, the European Parliament (that bunch of ELECTED Eurocrats) voted in favour of a series of amendments to the Pregnant Workers Directive 92/85/EU. These provided for, amongst other things, 20 weeks’ maternity leave on full pay.

The proposals were blocked in Council. The UK (you’ll probably have guessed) opposed the amendments. Who went along to block them? Vote Leave’s very own Chris Grayling MP: https://www.gov.uk/government/news/uk-ministers-lobby-europe-against-socially-regressive-maternity-proposals

The ECJ has on a number of occasions forced changes to the UK Law protecting pregnant women and those who take maternity leave against discrimination that would have been permissible as a matter of Domestic Law.


It is entirely correct that there is no EU minimum wage law. The EU does not have competence to legislate in this area (see Para 4.4 here: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/332524/review-of-the-balance-of-competences-between-the-united-kingdom-and-the-european-union-social-and-employment-policy.pdf).

It is true that not all Member States have national minimum wages. Some have sectoral minimum wages and others achieve the same result by way of widespread use of collective agreements.

We were late to the party. The French have had a statutory national minimum wage since 1950.


Since we joined the EEC in 1973 and the Sex Discrimination Act was not passed until 1975, a TARDIS seems to be required.

[Edit: The article responds to the specific points made in the graphic circulating on the Internet. The scope of European influence on UK Employment Rights is much greater than the subset addressed here. If you are interested in a complete picture of what rights are under-pinned by European Law, I strongly recommend this opinion produced for the TUC by Michael Ford QC: https://www.tuc.org.uk/sites/default/files/Brexit%20Legal%20Opinion.pdf ]

Hard Labour’s guide to UKEMPLAW election pledges

May of next year brings an election. Elections bring manifestos. Manifestos bring pledges. Some of them relate to what (over)-excites us here at Hard Labour: UK Employment Law. In the run up to the election we will be maintaining a page dedicated to Employment Law-related pledges. You can find it here or by clicking the link at the top of the page.

As always we welcome your input in keeping it as comprehensive and up to date as possible. To be included information must meet three criteria:

  • It must be an explicit pledge (e.g. we know Labour does not want to repeal the Human Rights Act 1998, but the table stays blank until there is a specific commitment on the issue);
  • The pledge must be officially made by or on behalf of the party; and
  • It must be available on the internet so that our readers can check it for themselves.

TUPE and Variations of Contract – today’s brain-teaser

To the considerable frustration of many a transferee employer, the scope for varying the contractual terms and conditions of transferring employees is notoriously limited.

TUPE 2006Reg 4 renders void any amendment the sole or principal reason for which is either:

(1)   the transfer itself; or

(2)   a reason connected with the transfer.

The latter limb is qualified, however. If the transfer-connected reason is an economic, technical or organisational (“ETO”) reason entailing changes in the workforce, the amendment will not be void.

Amongst the changes introduced by the new Draft TUPE Regulations is a recasting of Reg 4. Reg 4(4) will now render amendments void in a narrower range of circumstances:

“… any purported variation of a contract of employment that is, or will be, transferred by paragraph (1), is void if the reason for the variation is the transfer.”

There are two immediately apparent changes. First, the Regulation no longer makes reference to the “sole or principal reason”. Arguably it now only applies where the transfer itself is the sole reason for the variation.

Second, there is no reference to reasons “connected with” the transfer. The implication appears to be that variations which are for reasons which are merely transfer-connected should be safe.  There is, however, a big but and here at Hard Labour we like big buts and we cannot lie. New Reg 4(5)(a) will provide:

“Paragraph (4) does not prevent a variation to the contract of employment –

(a)   if the reason for the variation is an economic, technical or organisational reason entailing changes in the workforce …”

What is the purpose of this provision? An ETO reason is a transfer-connected reason. If Reg 4(4) no longer applies to transfer-connected reasons – what is the point of Reg 4(5)(a)? Should it be taken to imply that a non-ETO transfer-connected reason will still fall within the scope of Reg 4(4)? Answers in the comments below, please.

Mba, Article 9 and the test of Indirect Discrimination

Ms Eweida, you may recall, is the British Airways employee who wanted to wear a cross on a necklace over her uniform so that others could see it. She considered that that was a religious belief. Over-simplifying, doing what she wanted to do meant a breach of her employer’s dress code. Ms Eweida complained that, amongst other things, she was the victim of an act of indirect discrimination.

The test of indirect discrimination is now to be found at Equality Act 2010s. 19. The constituent elements of the test are:

  1. A provision, criterion or practice (“PCP”) must be applied to the claimant;
  2. The respondent must apply it (or the Tribunal must be satisfied that they would apply it) to people who do not share the claimant’s protected characteristic (in this case, holding the belief);
  3. The PCP “puts, or would put, persons with whom [the claimant] shares the characteristic at a particular disadvantage”;
  4. The PCP puts or would put the claimant at that disadvantage; and
  5. The respondent cannot show it to be a proportionate means of achieving a legitimate aim”.

In the domestic proceedings Ms Ewieda failed at the third hurdle. She could not establish that there were others who shared her particular belief. This is often referred to as the requirement for a “group disadvantage”. Solitary disadvantage, the Court of Appeal found, was insufficient. Denied a domestic remedy, Ms Eweida went to the European Court of Human Rights. Again, rather over-simplifying, the ECtHR decided that the wearing of a crucifix in the manner proposed by Ms Eweida amounted to a manifestation of religion falling within Art 9(2) of the Convention:

Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

The Court decided that the interference with the manifestation was not, in the particular circumstances, proportionate. The UK should have protected Ms Eweida’s right to manifest her religion and had failed to do so.

Whilst the reasoning was clear it left unaddressed a very significant question. The claim had not failed because the Court of Appeal had decided that the PCP could not be justified; it failed because it could not be shown to have had the necessary indirectly discriminatory effect. The question of justification did not arise. So was the effect of the ECtHR’s decision that element 3 of the statutory test was to be regarded as incompatible with Article 9.

The Court of Appeal has now addressed this question in its decision in Mba v Mayor and Burgesses of the London Borough of Merton. Mrs Mba wanted to obey the Fourth Commandment and refrain from working on Sundays. The Council needed to provide care 24 hours a day and seven days a week to those living in the children’s home at which Mrs Mba worked. Having accommodated her desire not to be rostered on Sundays for a period, the Council decided that it could no longer continue to do so. Following an unsuccessful grievance, Mrs Mba resigned.

It was accepted that the requirement to work Sundays was indirectly discriminatory. The argument was focussed on issue 5 above: whether the justification defence was available. There was no dispute that the Council had a legitimate aim so that the argument was focused, narrowly, on the question of proportionality. It was not a case, therefore, directly concerned with what one might call “the unresolved Eweida question”.

The Employment Tribunal had, in assessing proportionality, taken into account three specific factors. Only one matters for present purposes: the Tribunal had taken into account the fact that sabbatarianism was not, in its view, a “core component of the Christian faith”. A lot of Christians work on Sundays.

Christians might take the objection that judging what religion requires by what adherents actually do is a misguided exercise. We are all sinners. The Court focused on a rather different issue: whether the number of people affected was relevant to justification.

Maurice Kay LJ decided that that the Tribunal had erred in its approach to justification. It should not have been asking how many Christians were affected. It should have been looking at the extent of the impact on sabbatarians, i.e. those who shared Ms Mba’s particular belief. Once one was satisfied that others were affected adversely (so as to jump hurdle 3), the number of those affected was not something that was relevant to the assessment of proportionality. He specifically did not place reliance on either Article 9 or Eweida which he considered to be a case that was “entirely fact sensitive”.

Elias and Vos LJ took a different approach – one that depended upon the impact of Article 9. Patrick Elias (whom I adore with a near religious fervour) tackles the unresolved Eweida question head on. He says the “group disadvantage” requirement (ie, hurdle 3) cannot be read down. Reconciling the domestic legislation with the Eweida decision will in practice, therefore, either take a differently minded Court of Appeal, the Supreme Court or legislation. Article 9 could be used, however, to determine how the proportionality question should be answered. The effect of Eweida was that:

It does not matter whether the claimant is disadvantaged along with others or not, and it cannot weaken her case with respect to justification that her beliefs are not more widely shared or do not constitute a core belief of any particular religion.

Both Elias and Kay LJJ took the view that the smaller the group that shared a claimant’s belief the easier it should be to accommodate it. If number of adherents was a relevant issue, therefore, it had the opposite effect to that which the respondent might have supposed.

With all three judges deciding that the Tribunal had erred in law, did Mrs Mba win? Nope. It was decided that since there was in practice no way of accommodating Mrs Mba’s beliefs, the outcome would have been no different even if the Tribunal had adopted he correct analysis.

Direct Disability Discrimination – the correct comparator

I have found that representatives often assume that the correct comparator in a direct disability discrimination claim is someone who is not disabled.

You can see why they make their assumption. S.13(1) provides:

“A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

In order to work out whether the protected characteristic causes the difference in treatment, you would want a comparator who does not have the characteristic. The protected characteristic is defined at EA 2010, s. 4 as “disability”. So it’s simple then: Person B has a disability and their comparator should be someone without a disability. Or is it that simple?

EA 2010, s. 23 tells us how to perform the comparison:

“(1)   On a comparison of cases for the purposes of section 13 … there must be no material difference between the circumstances relating to each case.

(2)   The circumstances relating to a case include a person’s abilities if –

(a)   on a comparison for the purposes of section 13, the protected characteristic is disability”

So, in a direct disability discrimination case, the comparator should have the same “abilities” as the claimant. But a person’s abilities (to carry out normal day to day activities) are a key element in determining whether or not they have the protected characteristic (EA 2010, s. 6(1)(b)), so if claimant and comparator have identical abilities, they may both have a disability.

Why would the Act provide for a test in which both claimant and comparator are disabled? The answer is to be found in the critical (and much ignored) EA 2010, ss 6(3)(a):

“In relation to the protected characteristic of disability –

(a)   a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability”” [My emphasis].

It is where the claimant’s particular disability is what causes the disparity in treatment that liability is established. The comparator may be another disabled person, provided that their particular disability is different to that of the Claimant.

Or have I got this wrong? This analysis means the scope of protection is much narrower than many assume. Perhaps so narrow that direct disability discrimination claims would only succeed very infrequently. Let’s have an argument in the comments below.

Welcome to Hard Labour

This is a community blog for Employment Lawyers and HR Professionals. Its purpose is to give a platform for those who have something they want to say about Employment Law and to provide a forum for debate. We would welcome submissions for publication or cross-posting.