Margarida Vasconcelos: The UK must have the freedom to legislate its own employment law and to pursue its own employment and social policies

The EU, and its legal system, as well as the role of the European Court of Justice, have a significant impact on the daily lives and business of the British people. One can find EU influence everywhere and yet most of the provisions do not work, or impose burdens on business, such as the EU Health and Safety regulations that have been eroding Britain’s trade and economic well-being. In fact, the EU overregulation and, particularly, employment and social laws, such as the Temporary Agency Workers Directive and Working Time Directive, place unnecessary burdens on businesses, particularly on SMEs and micro-enterprises, and have been preventing growth, prosperity and employment.

It is well known that the Working Time Directive is one of the most burdensome pieces of legislation, which has been further strengthened by the ECJ. In fact, every time the Court is asked to interpret the Directive, through the preliminary ruling procedure, further burdens are imposed on business. These cases show how the ECJ interferes with member states legal systems. The Court´s rulings have been overriding national rules and have thrown the UK law and practice on annual leave into a mess. The ECJ has recently delivered another preliminary ruling concerning Article 2 of the Working Time Directive, which further demonstrates that decisions on British worker’s rights are not made by the UK parliament or by UK’s courts.

This provision defines working time as “any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practice” and rest period as “any period which is not working time’. The Spanish National High Court asked the ECJ whether the time workers, without fixed or habitual place of work, spend travelling at the beginning and at the end of the day must be regarded as working time within the meaning of the directive.

In Federación de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL, Tyco Integrated Fire & Security Corporation Servicios SA (C 266/14) case, the Court pointed out that the working time directive is intended to improve the living and working conditions of workers and held that excluding those journeys from working time would be contrary to this objective. The ECJ rejected therefore the UK Government’s arguments that “such workers would conduct their personal business at the beginning and end of the day” and that “it would lead to an inevitable increase in costs”, stressing that it would be contrary to the working time directive “if the resting time of workers without a habitual or fixed place of work were to be reduced because the time they spend travelling between home and customers was excluded from the concept of ‘working time’”.

The ECJ also pointed out that “even if, …, travelling time must be regarded as working time, Tyco remains free to determine the remuneration for the time spent travelling between home and customers". Issues related to travel-to-work time should be left to employers and employees to decide, as they know which arrangements suit them best. Yet, the Court ruled that Article 2 of the working time directive “must be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, in which workers do not have a fixed or habitual place of work, the time spent by those workers travelling each day between their homes and the premises of the first and last customers designated by their employer constitutes ‘working time’, within the meaning of that provision.” As the British Chambers of Commerce Executive Director of Policy and External Affairs, Adam Marshall, said “once again, a faraway court is taking decisions that could impact business prospects, job creation and economic growth in the UK."

Under the Working Time Directive workers must not work more than an average of 48 hours a week. The UK has got an “opt-out” clause whereby a worker may agree with the employer to work hours exceeding that limit, but the rule is 48 hours. This ruling will have serious implications for British businesses and employers, as the Government argued, counting travel between home and work at the beginning and at the end of the day as working time for workers without fixed or habitual place of work, would lead to higher costs for business. Anthea McIntyre MEP , Conservative Employment spokesman in the European Parliament, said "Potentially this could add significantly to the costs of businesses and interfere with long-established business practices. It could hit smaller firms particularly and that would be bad for growth and bad for jobs."

British businesses will have to review their working arrangements in the light of the ECJ's ruling. According to Chris Tutton, from the law firm Irwin Mitchell, "Unless they adjust working hours or ask employees to opt out of the 48-hour working week, employees could quickly exceed the number of hours they are legally allowed to work. Bosses could therefore soon find that they are operating illegally and at risk of facing costly claims against them,". Elizabeth Slattery, from the law firm Hogan Lovells, also said, “Businesses who don’t already pay peripatetic employees for their travelling time at the start and end of the day may now face pressure to do so and face challenges in monitoring this.”

It is also important to mention that according to Phil Allen, from law firm Weightmans, “Whilst this decision is not about the national minimum wage, which is not subject to European law and the wording of the Act is different, it may also have implications for what employees must be paid. There is often a degree of overlap between the way the two regimes are interpreted, so an impact on minimum or living wage cannot be discounted.”

The endless list of burdensome EU directives and regulations, on health and safety at work, is strangulating British business and it is harming the UK’s deregulated labour market, which is becoming less flexible and less competitive. As Bill Cash has been saying “the UK economy would create more jobs if it was relieved of the costs and burdens of the EU ‘single market”.

The UK employment and social issues cannot continue to be decided by Brussels through legislation adopted by QM and the ordinary legislative procedure and then subject to final jurisdiction of the European Court of Justice. In fact, the time has come to stop back-door EU employment law being made by extensive rulings of the ECJ. The UK must have the freedom to decide its own employment law and to pursue its own employment and social policies. However, without a fundamental renegotiation of the Treaties, there is nothing the Government can do about to reverse the present situation unless it amends the ECA 1972 so that EU law can be disapplied. The Westminster Parliament must be able to, unilaterally, repeal EU law. It is important to recall that the European Scrutiny Committee not only recommended the re-introduction of the unilateral veto but also dis-application of EU legislation notwithstanding the European Communities Act 1972. Parliament must be able to override all EU legislation, which is deemed not to be in Britain's national interest. It is fundamental to defend the right and freedom of British people to make their choice at the ballot box, regardless of qualified majority voting, of the undemocratic ordinary legislative procedure and irrespective of the European Court of Justice damaging rulings.

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