Guides to EU Legislation

Enterprise Europe Scotland has produced a number of summaries of relevant EU Legislation to help guide you through the maze of Regulations, Directives and Decisions from Europe which may have an affect on your business. 

If you would like to find out more, or if have a specific question relating to EU legislation, contact us at info@enterprise-europe-scotland.com

European Employment Legislation

What is European Policy on Employment?

European policy on Employment covers a wide range of issues including job creation measures, employee rights, equality at work and working conditions.  It comes under the remit of the European Commission Directorate-General for Employment and Social Affairs.


Background to European Employment Policy

The Treaty of Rome provided the first legal basis for EC action to promote improved working conditions.  This was followed in 1989 by the Community Charter of Fundamental Social Rights (or the Social Charter), and in Maastricht in 1991 by the Social Chapter.  The UK ended its opt-out to the above 1989 Charter and Social Chapter in 1997, and the Treaty of Amsterdam (1997) included a new Employment Chapter in which the promotion of employment was added to the list of Community objects with the objective of reaching a high level of employment without undermining competitiveness.  The current policy agenda includes a number of aims such as more and better jobs, modernization of social protection, promotion of gender equality and balancing flexibility and security in the working environment.

What is covered by European Employment Legislation?

There is a range of Directives covering different areas of Employment legislation.  The key Directives covering the free movement of workers, working conditions and equal opportunities are listed below:

According to the principle of the free movement of workers, citizens of each Member State are entitled to take up paid employment in another Member State under the same conditions as that Member State’s own citizens.  For example, they should have the same access to employment as nationals, the same assistance from employment offices etc.  However, there were some limitations placed on the movement of workers from the new Member States who joined the EU in May 2004.  These limitations apply to all the new Member States, except Cyprus and Malta, and there is a transitional period of seven years from May 2004 before full freedom of movement needs to apply. 

This applies to businesses who post workers to the territory of another Member State for a limited period of time.  Generally it requires that where a Member State has certain minimum terms and conditions of employment, these must also apply to workers posted temporarily by their employer to work in that State.  Workers can benefit from minimum terms and conditions which are more favourable than those that are applied in the State from which they are posted.  The Directive covers issues such as health and safety, minimum rates of pay and health and safety protection.   

In the past there have been several Directives which established different systems of recognition for professional qualifications and attempted to facilitate the means by which those wishing to work in other EU countries could have their qualifications recognised.  The legislation applied to all EU nationals wanting to practice a regulated profession in a Member State other than that in which they obtained their qualification.  A new Directive has now been adopted which repeals and replaces the previous 15 Directives in this area to create a single legal framework for all kinds of regulated professions – doctors, nurses, dentists, midwives, vets, pharmacist and architects.  It should ease the free movement of workers and increase labour market flexibility.  Member States are required to implement the new Directive by 20 October 2007.  The Department for Education and Skills operates a service to assist those wishing to obtain information on professional recognition elsewhere in the EU: http://www.ukncp.org.uk/


Health and Safety Legislation

There are a number of Directives to regulate health and safety in the workplace.  These include exposure to physical, chemical and biological agents (such as asbestos); use of personal protective equipment; protection of pregnant workers; work on display screens; handling of heavy loads.  More detailed information on European health and safety legislation can be found in the Hot Topics section of our website:

This Directive consolidates the former basic Working Time Directive 93/104 which provides for protection against adverse effects on workers’ health and safety caused by working excessively long hours, having inadequate rest or disrupted work patterns.  The 93/104 Directive provides for:

- A maximum 48 hour working week averaged over a reference period

- A minimum daily rest period of 11 consecutive hours a day

- A rest break where the working day is longer than 6 hours

- A minimum rest period of one day a week

- A statutory right to annual paid holiday of 4 weeks

- A limit on night working of 8 hours a night on average

The working time Directive 2003/88/EC is part of the EU’s health and safety regulations to protect workers. It limits the average working hours per week to 48 hours, but allows member states to opt out from that provision. It also regulates reference period resting time, on-call time. The modified proposal updates key aspects of the 1993 directive: the definition of on-call time, the reference periods for calculating the 48-hour maximum working week and the opt-out from the 48-hour week.

Initially, some activities were excluded but an amendment to the legislation in 2000 (Directive 2000/34/EC) brought workers in air, rail, sea, inland waterway and lake transport, sea fishing, other work at sea and trainee doctors under the scope of the legislation.  The Directive gives Member States an ‘opt-out’ provision, under which individual workers can waive the right to work no more than 48 hours per week.  The opt-out has mainly been used by the UK.  In January 2004, the European Commission published a 10-year review of the Working Time Directive, focusing particularly on the opt-out provision and concerns that some workers were being coerced into ‘volunteering’ for longer hours.  The Commission has since put forward a proposal which, if agreed, would make the opt-out subject to stricter conditions.  The Working Time Directive is implemented in the UK by the Working Time Regulations 1998.

The main objective of the Directive is to prohibit, with certain exceptions, the employment of children (those under the age of 15 or who are still in full-time compulsory education).  Additionally, the Directive applies to all young people under the age of 18 who have an employment contract or relationship and seeks to ensure that the employment of adolescents is controlled and protected.  Generally, employers’ obligations focus on the protection of the health and safety of young people and the legislation stipulates that some work should not be carried out by this group e.g. work involving exposure to harmful substances.  The Directive also has provisions relating to working hours, night work, rest periods, rest breaks and annual leave.  The Directive is implemented in the UK by the Working Time Regulations 1998 and the Working Time (Amendment) Regulations 2002.

 

Protection of Employee Rights and Contractual Obligations

This Directive sets out requirements for informing and consulting employees at a European level in undertakings with at least 1000 employees across the Member States and at least 150 employees in each of two or more of those Member States.  It is implemented in the UK by the Transnational Information and Consultation of Employees Regulations 1999, which came into force on 15 January 2000.

This Directive is implemented in the UK by the Information and Consultation of Employees Regulations 2004, which came into force in April 2005.  The Regulations require that employees in organisations with 150 or more employees have a right to be informed and consulted on a regular basis about issues in the organisation they work for.  The legislation will apply to organisations with 100 or more employees from April 2007 and to those with 50 or more from April 2008.  The requirements of these Regulations do not apply automatically – an employee request must be made by at least 10% of employees in the organisation. 

The Insolvency Directive relates to the protection of employees in the event of the insolvency of their employer and applies to employees’ claims arising from contracts of employment against employers who are in state of insolvency.  Relevant legislation in the UK is the Employment Rights Act 1996 and the Pension Schemes Act 1993. 

This legislation requires employers to inform and consult workers in the event of a collective redundancy.  Consultation should at least cover ways and means of avoiding redundancies or reducing the number of workers affected and mitigating the consequences.  Collective redundancy occurs where the employer proposes to dismiss as redundant at least 20 employers at one establishment within a 90 day period.  The relevant legislation in the UK is the Trade Union and Labour Relations (Consolidation) Act 1992.

The Acquired Rights Directive preserves employees’ terms and conditions when a business or undertaking, or part of one, is transferred to a new employer.  The Directive is implemented in the UK by the Transfer of Undertakings (Protection of Employment) Regulations 2006 – known as the TUPE Regulations.  These Regulations apply regardless of the size of the transferred undertaking.  Employees’ continuity of service is preserved as are their terms and conditions under their contracts of employment (except for certain occupational pension rights).

The Parental Leave Directive allows for male and female workers to have individual entitlement to parental leave on the grounds of birth or adoption of a child enabling them to take care of a child for at least 3 months.  Workers have the right to return to the same job or, if that is not possible, to an equivalent or similar job consistent with their employment contract or relationship.  In the UK, generally employees have to have 1 year’s continuous service with their current employer and are entitled to 13 weeks of leave for each child, or 18 weeks for a disabled child. (Maternity and Parental Leave etc Regulations 1999 – amended in 2001 and 2002)

Further changes to employment legislation occurred in April 2007 when the UK government made amendments to existing family friendly legislation.  The main changes are: an extension to Statutory Maternity Pay from 26 weeks to 39 weeks, for those who qualify; employees who qualify for ordinary maternity leave (of 26 weeks) will also qualify for an additional leave of 26 weeks; the period of notice to return to work early from maternity leave is doubled to 56 days; introduction of ‘keeping in touch’ days where employees can attend work without losing statutory maternity or adoption pay.

This Directive covers the health and safety of pregnant workers, women workers who have recently given birth and who are breastfeeding.  In addition to covering issues such as exposure to risks considered dangerous for the health and safety of relevant workers, the Directive also covers issues such as maternity leave rights, maternity pay, attendance at antenatal classes and unlawful dismissal related to pregnancy – from the beginning of the pregnancy to the end of the period of leave from work.  Maternity rights in the UK are legislated for by the Employment Rights Act 1996 as amended by the Employment Relations Act 1999 and Employment Act 2002 and by the Maternity and Parental Leave etc Regulations 1999 and Maternity and Parental Leave Amendment Regulations 2002.

This Directive seeks to prevent employers from treating fixed term workers in a less favourable manner than permanent employees, unless the difference in treatment can be justified on objective grounds.  It aims to improve the quality of fixed term work by ensuring the principle of non-discrimination and to prevent abuse arising from the use of successive fixed term employment contracts.  The Directive is implemented in the UK by the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002.

This Directive’s intention is to eliminate discrimination against part-time workers and improve the quality of part-time work.  In every respect of employment conditions, part-time workers should not be treated in a less favourable manner solely because they work part-time unless different treatment is justified on objective grounds.  The Directive is implemented in the UK by the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

The main purpose of the Agency Workers Directive is to ensure the appropriate protection of temporary agency workers through the application of the principle of equal treatment and to address unnecessary restrictions and prohibitions on the use of agency work.  Under the Directive, ‘equal treatment’ relates to basic working and employment conditions of temporary agency workers (e.g. pay, working time) – it does not affect the employment status of temporary workers.  The Department for Business, Enterprise and Regulatory Reform (BERR) is due to consult on the UK implementation of the Directive in 2009.  The deadline for implementing the Directive across the EU is 5 December 2011.



Equal Treatment and Opportunities

This Directive works on the principle that for the same work, or for work to which equal value is attributed, all discrimination on grounds of sex with regard to all aspects and conditions of remuneration should be eliminated.  The UK implemented the European Directive in the Equal Pay (Amendment) Regulations 1983.

This Directive focuses on equal treatment between men and women in relation to employment, vocational training, promotion and working conditions.  It is amended by Directive 2002/73/EC which includes a definition of sexual harassment and ensures that a woman on maternity leave will be entitled to return to her job or equivalent post on terms and conditions which are no less favourable and to benefit from any improvement in working conditions to which she would have been entitled during her absence.  The Directive is implemented in the UK by the Employment Equality (Sex Discrimination) Regulations 2005, effective since 1 October 2005. Equal Opportunities and Equal Treatment of Men and Women in Matters of Employment and Occupation Directive (2006/54/EC)

This Directive simplifies, modernises and improves European law in relation to gender equality by putting Directives into a single text.  The text combines seven Directives about equal treatment of men and women: equal pay; equal treatment; occupational social security schemes (pensions); and burden of proof in sex discrimination cases.  The purpose of the Directive is to ensure equal opportunities and equal treatment of men and women in matters of employment and occupation.  It covers access to employment, including promotion, vocational training and working conditions, including pay.
 
Member States are expected to implement this Directive by August 2008.  Subsequently, the Equal Pay and Equal Treatment Directives mentioned above will no longer be in force from August 2009. 

This Directive implements the principle of equal treatment between people irrespective of racial or ethnic origin.  It includes giving protection against discrimination in employment, working conditions, training, education and social protection and security.  UK legislation already largely covered the provisions of the Directive but additional areas were implemented by the Race Relations Act 1976 (Amendment) Regulations 2003.

This implements the principle of equal treatment irrespective of religion or belief, disability, age or sexual orientation in employment, training, membership and involvement in organisations of workers and employers.

This Directive is implemented in the UK by:

- Employment Equality (Religion or Belief) Regulations 2003

- Employment Equality (Sexual Orientation) Regulations 2003

These two pieces of legislation outlaw discrimination in employment and vocational training – this includes direct and indirect discrimination, harassment and victimization.  The Regulations apply throughout the employment relationship (recruitment, terms and conditions, pay, promotion, transfers and dismissals) and apply to all employers and businesses whatever their size and whether they are public or private.

Additionally, the Directive is implemented by amendments to the Disability Discrimination Act 1995 which came into force in October 2004 and legislation outlawing discrimination on the grounds of age came into force in October 2006 via the Employment Equality (Age) Regulations 2006.

 

If you have any further questions or queries then please contact us.