In a long awaited speech David Cameron has set out his vision for the European Union. If the Conservative party are elected they will seek to reform the EU considering, among other things, whether ‘the balance is right’ in areas such as ‘social affairs’, which includes employment legislation. Once the Government has attempted reform of the EU Britain will be offered an ‘in or out’ referendum. How would that impact employment law in the UK?
In his speech Mr Cameron states that ‘complex rules restricting our labour markets are not some naturally occurring phenomenon. Just as excessive regulation is not some external plague that’s been visited on our businesses… Let us not be misled by the fallacy that a deep and workable single market requires everything to be harmonised, to hanker after some unattainable and infinitely level playing field… countries are different… For example, it is neither right nor necessary to claim that the integrity of the single market, or full membership of the European Union, requires the working hours of British hospital doctors to be set in Brussels irrespective of the views of British parliamentarians and practitioners. In the same way we need to examine whether the balance is right in so many areas where the European Union has legislated, including on the environment, social affairs and crime’. The Prime Minister also suggests that the democratic accountability of the EU can be improved, the single market extended in some areas, and the size of the European Commission reduced.
Mr Cameron goes on to argue that a vote on leaving the EU today ‘would be an entirely false choice’ while it is unclear what sort of EU will emerge from the Eurozone crisis. Therefore the ‘Conservative Manifesto in 2015 will ask for a mandate from the British people for a Conservative Government to negotiate a new settlement’ with the EU in the next parliament. Once that new settlement has been negotiated the Conservatives would hold a referendum within the first half of the next parliament on whether to ‘stay in the EU on these new terms; or come out altogether’. Legislation will be drafted before the next election to enable a Conservative Government to introduce the enabling legislation immediately and pass it by the end of that year if elected.
Article 151 of the Treaty on the Functioning of the European Union deals with social policy – one of the areas Mr Cameron cites as needing reform. Article 151 allows the EU to legislate on, among other things:
- working environment improvements to protect workers’ health and safety
- working conditions
- protection of workers where their employment contract is terminated
- the information and consultation of workers
- representation and collective defence of the interests of workers and employers
- conditions of employment for third-country nationals legally residing in the European Union
- the integration of persons excluded from the labour market, and
- equality between men and women with regard to labour market opportunities and treatment at work.
Thus, were the Conservative party to be elected in 2015, it seems they would attempt to negotiate Britain out of a huge swathe of employment protections which the EU has enacted under its social policy competency. Given the coalition’s wide-ranging repeals of employment law ‘red tape’ in the current parliament it seems inevitable that a Conservative government would seek to further reduce domestic employment protection legislation if it successfully negotiated the UK out of EU social policy legislation, or if the UK population were to vote in favour of leaving the EU. Sadly for those members of the Conservative party who think leaving the EU would be a panacea for all Britain’s problems, the UK would still be subject to the European Court of Human Right’s jurisdiction and able to rule that the UK had failed to protect a claimant’s human rights (as it did recently in Eweida v UK). Stripping employees of EU and UK employment rights would almost certainly see a dramatic rise in the number of human rights claims, which would be far more costly for employers than domestic tribunal claims. Removing UK citizens’ human rights in such a situation may prove a hard sell for even the most ardent euro sceptic.