This blogpost was written on Saturday March 9th, 2019

Speaking in Grimsby on Friday, March 8, the UK Prime Minister, Theresa May, said:

We have also committed to protecting the rights and standards currently set at the EU level – from workers’ rights to environmental protections.

Brexit will not be a race to the bottom. In fact, in most of these areas the UK has led the way, ahead of the EU. And this week we have said that if the EU expands workers’ rights, we will debate those measures in Parliament and decide if we want to follow suit.

…But we will not tie ourselves in automatically to follow EU changes without Parliament having its say.

That would mean weakening workers’ rights if the EU ever chose to do so. And it would not be taking back control. The UK has led the way in the EU, and we will lead the way outside it.

To put it at its mildest, this is simply not true.

The UK has consistently opposed and sought to water down proposals for EU employment and social law more or less stretching back to the start of its EU membership in the 1970s. Back in those days, with Labour in government, and the trade unions and the Left within the party hostile to the then European Community (EC), seeing it as a “capitalist club”, the UK blocked moves on “industrial democracy” proposals because their adoption might undermine the workplace position of the then dominant trade unions.

Nevertheless, the 1970s saw the passing of important Directives on Equal Pay, Collective Redundancies and the Acquired Rights (now known as the Transfer of Undertakings), all of which, subsequently, helped shape the UK employment and labour relations landscape significantly.

In !979, following the industrial relations chaos of the “Winter of Discontent”, the Conservatives returned to office with Margaret Thatcher as prime minister. Thatcher was committed to rolling-back the power of trade unions and also wanted to deregulate the labour market. Enough books have been written on what subsequently happened in the UK in this regard that I do not need to go back over it.

In those days, all EC labour and employment laws had to be adopted unanimously in the Council, which meant that just one-member state could exercise a veto. As Thatcher subsequently made clear in her Bruges speech in the late 1980s, while planning to deregulate in the UK she was not prepared to see regulations reintroduced at the EC level. The veto was used when necessary and between 1980 and the late eighties no employment legislation of any significance was adopted by the EC.

Pushed by Thatcher, Jacques Delors, who had become EC Commission president in 1985, decided to move forward with a project to create a single European market by eliminating non-tariff barriers with the EC. 1992 was set as the target date. Delors realised that to take the Left with him there would have to be measures to protect workers as he realised that what he was proposing would bring disruptive changes as businesses adapted to the single market.

He proposed that laws relating to health and safety and the working environment, like other single market measures, be adopted by qualified majority voting. The UK Conservative government was prepared to go along with this, understanding health and safety in a very narrow, technical way. But Delors had a much wider understanding of what health and safety in the working environment meant.

As the soon as the single market legislation came into force the Commission introduced draft legislation on, for example, Maternity Leave and, the subsequent bête noire of the Eurosceptics: Working Time.

The Working Time Directive proposed a maximum working week of 48 hours, 4 weeks annual leave and daily and weekly rest breaks. The UK government saw that as an attack on its flexible labour market model and objected to it being adopted as a single market measure on the basis of qualified majority voting. Even though in negotiations it managed to secure the “48-hour” opt out, when it was adopted the UK government went to the European Court to challenge the legal basis on which it had been brought forward.

Before the ECJ it argued that working time was not a health and safety issue which could be adopted by qualified majority voting, but an employment issue which required unanimity, meaning the UK would have a veto. The court ruled against the UK.

As a footnote, it is worth noting that the UK interpreted the four weeks annual leave as including existing public holidays. It was only later that it was conceded that these holidays were over and above the four weeks.

I mentioned earlier the adoption in the 1970 of the Collective Redundancies and the Transfer of Undertakings Directives. Under the Thatcher governments two issues arose in relation to their interpretation.

First, both directives require that when collective redundancies or the transfer of undertakings are in prospect management must “inform and consult” with employees’ representatives. In the UK at the time the only employees’ representatives there could be were trade union officials and shop stewards. If there was no union, there were no employees’ representatives.

However, there was no legal framework which required management to recognise or negotiate with a trade union. Recognition was purely voluntary. The government, therefore, held that in the absence of voluntarily recognised trade union representatives UK employers had no obligation to inform and consult when it came to collective redundancies or the transfer of undertakings as they had no employees’ representatives.

The EC Commission began legal proceeding against the UK, arguing that it needed to put in place legislation to allow for the election of employees’ representatives to be informed and consulted when collective redundancies or the transfer of undertaking were in play. Ultimately, the European Court ruled that the UK had to put such legislation in place, but the then Conservative government fought it all the way.

One of the flagship policies of the 1980s Thatcher governments was the contracting out of public services, driven by a belief that the private sector did things better. The government decided that public sector contracting out fell outside the scope of the Transfer of Undertakings Directive and so there was no need to inform and consult.

Bear in mind that the public sector was heavily unionised and so employees’ representatives did exist who could have been informed and consulted. The public sector unions challenged this interpretation of the law and again, ultimately, the European Court found against the UK government.

Arising out of the single market program the European Commission presented new proposals for the establishment of European Works Councils (EWCs), bodies that would represent workers in transnational companies and which would have to be informed and consulted about transnational business decisions. The idea for the creation of such bodies stretched back to the 1970s, the very “industrial democracy” ideas the then Labour government objected to.

As EWCs were an employment law matter the UK vetoed the adoption of the legislation.

As is well known, in 1992, the member states of the European Community, on its way to becoming the European Union, agreed the Maastricht Treaty, which provides the legal basis for the euro. As with the single market legislation, Delors realised that the euro would require an expanded social dimension and proposed that most employment measures could, in the future, be adopted on a qualified majority basis.

By this time John Major was UK prime minister and strongly opposed this proposal to the point of threatening to veto the treaty. Delores proposed that the “social chapter” be taken out of the treaty and included in a separate protocol from which the UK could “opt-out” So, the UK “social chapter opt-out” came into being.

The Maastricht Treaty came into force in 1994, following the failure of a constitutional challenge to it in the German courts. The EU Commission immediately re-tabled the EWC Directive under the qualified majority voting procedure of the treaty and it became law on September 22, 1994. However, it was only transposed into UK law in 1999, after the Labour Party came to power in 1997 and reversed the social chapter opt-out.

But our story does not end there. After coming to power, Labour continued the UK tradition of opposing proposed EU laws. Two examples will suffice.

The EU proposed a directive to establish a general framework for informing and consulting employees’ representatives, an initiative to “plug the gap” in situations where there were neither trade unions nor works councils present. The UK led the opposition at every turn, supported in this by the Irish government. It was only when the Irish government had a change of heart on the matter that the directive was adopted.

More controversially, the UK Labour government fought tooth and nail against the Temporary Agency Workers Directive in the 2000s, holding up its adoption for years. In was eventually agreed in 2008. In was transposed into UK law in 2011, by which time Labour had been replaced in government by the Conservative/Liberal coalition.

In transposing the legislation the government availed of what is known as the “Swedish derogation”. The Agency Workers Directive requires that after a certain number of weeks agency workers must be given the same pay and working conditions as comparable workers in the host company. However, there is an exception to this rule, the “Swedish derogation”. If an agency pays temps between assignments in host companies then the entitlement to equal pay and conditions in the host company falls away.

While this derogation means one thing in highly-unionised Sweden, in the UK it opened the door to what many regard as widespread exploitation. Its use contributed to the perception that “agency workers” from Central and Eastern Europe were used to undercut the pay and working conditions of British workers after the EU expansion. Whether true or not, in politics perception counts.

Interesting also to note that last year, 2018, all Conservative MEPs voted against the revised Posted Workers Directive, designed to ensure that workers “posted” for a temporary period from one EU country to another are paid at least comparably to local workers. Again, a measure designed to ensure that local pay and conditions are not undercut.

The above is just a thumbnail sketch of the way the UK has acted since it joined the EU when it came to proposed employment and labour laws. I could have made it much more detailed and provided references to substantiate what I say, but best to write something like this quickly before mistruths have had a chance to take hold.

It is simply not true to say, as Theresa May did in Grimsby, that: “…In fact in most of these areas the UK has led the way, ahead of the EU”.

When the UK joined the EU in 1973 it had little or no employment law on its statute books. What laws there were mostly related to trade union activity, such as the 1906 Trades Disputes Act. Yes, most Labour governments subsequently did introduce employment laws, such as dismissal legislation, but a great deal of what exists today came from Europe. The record shows that, consistently, UK governments of all hues opposed the adoption of such legislation and, where they could not do so, sought to water it down considerably.

Now, you can take a view as to whether the EU should legislate on employment laws. It is a perfectly legitimate argument to say that such laws should be left to national governments. But the widespread view across Europe is that a single market requires a “level playing field” at the very least. This was repeated by French President Macron again this week in his letter to European citizens.

The Prime Minister also said that:

But we will not tie ourselves in automatically to follow EU changes without Parliament having its say.

That would mean weakening workers’ rights if the EU ever chose to do so.

Because of my day job as a labour relations consultant I have been a close student of EU employment and labour laws going back to the 1970s.

I am not aware of one instance in all those years of the EU adopting legislation to “roll back” workers’ rights.

You might argue that there have been some European Court decisions that did just that, such as the Laval decision. That decision relating to a complex issue about a strike in Sweden. But can anyone point to an EU court decision that took rights away from individual workers?

On the contrary. The EU court has consistently pushed the boundaries on equal pay and working conditions. For example, look at the number of cases on entitlement to holiday pay under the Working Time Directive in which the court has consistently ruled in favour of employees.

One such example is the decision in a UK referred case as to whether workers on holidays are entitled to have commission payments included in their holiday pay. The court said they were entitled to have such commission pay included.

For a UK Conservative prime minister to say that she fears that the EU might lessen workers’ rights is, to say the least, somewhat brazen.

In all things Brexit, honesty can be the only way forward.