Some thoughts on European and national non-discrimination law and Brexit

Dr Jule Mulder, Lecturer in Law, University of Bristol Law School

Dr Jule Mulder, Lecturer in Law, University of Bristol Law School

European non-discrimination law is a great example of how legal ideas travel around the globe and are modified and improved in the process.

As well demonstrated by Fredman[1]and Schiek,[2] non-discrimination law did not originate in Europe nor can the European influence be negated.

For example, the concept of indirect discrimination can be traced back to international law and was also pioneered in the US case of Griggs v Duke Power,[3] which challenged under the Civil Rights Act 1964 employment practices that required High School diplomas in order to access specific jobs.

This US legal development then inspired European Common Law jurisdictions—most notably the UK—to incorporate similar concepts in their national law (see e.g. Sex Discrimination Act 1975 and Race Relations Act 1976), and the concept of indirect discrimination finally reached the EU in the early 1980s when the Court of Justice of the European Union (CJEU) explicitly referred to the Griggs in its Jenkins Judgment,[4] a case which also originated in the UK.

However, this initial influence from the UK and other common law jurisdictions did not halt in this development. Rather, what started as a relatively insignificant equal pay provision in the Treaty of Rome (Article 119 EEC) and a political compromise between Germany and France,[5]has developed into a large equality framework protecting the characteristics of sex, race and ethnic origin, religion and belief, age, disability, and sexual orientation (e.g. Directives 2000/43, 2000/78 and 2006/64) and goes beyond employment discrimination by also tackling sex and race discrimination within the access to and supply of goods and services (Directives 2000/43 and 2000/113).

The 2000 directives expanding the personal scope of EU non-discrimination law were particularly affected by Anglo-Dutch intellectual thought and influence,[6] as jurisdictions that had most significant experience with non-discrimination law covering a wide number of protected characteristics. These new directives, alongside the CJEU interpretation of all the directives and equal pay provision (now Article 157 TFEU), then in turn influenced the law of the Member States including the UK legal framework.

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Brexit and Worker Rights

Prof Michael Ford QC, Professor of Law, University of Bristol Law School

Professor Michael Ford QC, Professor of Law, University of Bristol Law School

It is now pretty well-known that most of the employment rights in the UK are guaranteed by EU law—the principal exceptions are unfair dismissal and the national minimum wage —as I explained in a recent advice for the TUC. UK legislation on race discrimination, sex discrimination, equal pay and disability discrimination may have pre-dated EU Directives in these areas, but EU law led to protection against other forms of discrimination, such as detrimental treatment owing to age, sexual orientation and religion and belief. Over the years EU law has greatly supplemented or overwritten the domestic regime, almost always in favour of workers’ rights – removing limits on damages, recognising that pregnancy discrimination did not need a comparator, changing rules on the burden of proof, allowing equal pay claims for work of equal value, protecting against harassment and post-employment victimisation. I could go on.

Now extending far beyond discrimination, the EU-guaranteed rights include almost all the working time protections, including paid annual leave and limits on working hours; the protection of agency, fixed-term and part-time workers; rights on the transfers of an undertaking (extremely significant in a world dominated by out-sourcing); many rights to information and collective consultation; the most important health and safety regulations; the right to a written statement of terms of employment; protections in insolvency derived from the EU Insolvency Directive, which led to important extensions to the state guarantee of pension benefits and protection of other claims where the employer is insolvent (no doubt to be in play in relation to British Home Stores); and EU data protection law, the driving force behind the Information Commissioner’s Employment Practices Code, providing some controls over the monitoring and surveillance of workers.

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Amendment to earlier blog post: Are the Conservatives ‘now the Party of Work’? The Trade Union Bill suggests not…

Professor Michael Ford QC joined the Bristol law School in 2015 and specialises in labour law, human rights and public law.

Professor Michael Ford QC joined the Bristol law School in 2015 and specialises in labour law, human rights and public law.

Tonia Novitz is Professor of Labour Law, specialising in labour law, international trade and human rights.

Tonia Novitz is Professor of Labour Law, specialising in labour law, international trade and human rights.

Since Tonia and Michael’s last blog of 12 October 2015, the Government has now abandoned proposed restrictions on unions’ freedom of protest away from the workplace, probably because even the police did not identify a problem with the existing legal framework (see the response to consultation). But the government still wishes to amend the Code of Practice on picketing to cover e.g. intimidation on the picket line and the ‘responsible’ use of social media in strikes, with uncertain legal effect. No wonder the Trade Union Bill has been opposed not only by trade unions, such as Unison and Unite, but also by human rights NGOs. See for example the Joint Statement by Liberty, the British Institute of Human Rights, and Amnesty International.

The original blog follows.

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Are Conservatives ‘now the party of work’? The Trade Union Bill suggests not…

 

Professor Michael Ford QC joined the Bristol law School in 2015 and specialises in labour law, human rights and public law.

Professor Michael Ford QC joined the Bristol law School in 2015 and specialises in labour law, human rights and public law.

Tonia Novitz is Professor of Labour Law, specialising in labour law, international trade and human rights.

Tonia Novitz is Professor of Labour Law, specialising in labour law, international trade and human rights.

On 5 October 2015, George Osborne declared that the Conservative are ‘now the party of work, the only true party of labour’. The Trade Union Bill presented to Parliament in July 2015 demonstrates the hollowness of this claim. This proposed legislation has had little attention from the media but promises to place alarming restrictions on the rights of workers and their trade unions, probably in anticipation of deep budgetary cuts affecting the public sector which are, of course, likely to generate protest…

The measures in the Bill include: changes to the already very strict balloting requirements on strikes; new restrictions on peaceful picketing; new rules on the political activity of trade unions; restrictions on trade unions’ facility time in the public sector (with check off also in the Government’s sights); and greater controls on trade unions by the Certification Office. At the same time, the Government has published draft regulations allowing employers to hire agency workers as strike-breakers, and proposes further restrictions on protests organised by trade unions.

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‘Made in China’ vs. ‘made in the EU’: what’s the difference?

Dr Rutvica Andrijasevic, Senior Lecturer in Management

Dr Rutvica Andrijasevic,
Senior Lecturer in Management, University of Bristol

Foxconn, a Taiwanese-owned firm best known for being the main assembler of Apple products and for harsh working conditions at its Chinese factories, is the world’s largest electronics contract manufacturer. While Foxconn also operates in Europe, it is from its factories in mainland China that we hear of militarised disciplinary regime, excessive and unpaid overtime, unhealthy and unsafe working conditions and forced student labour.

Just how different is the situation in Europe? I set out to answer this question three years ago along with my colleague Devi Sacchetto from the University of Padua. We conducted 63 interviews in the Czech Republic and 29 in Turkey with current and former Foxconn workers and managers, trade union representatives, government officials and NGOs.

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Latest employment tribunal statistics confirm loss of access to justice for workers

Professor Nicole Busby, Strathclyde University

Professor Nicole Busby, Strathclyde University

If we needed further proof that the Coalition’s policy of charging claimants to bring cases to the Employment Tribunal (ET) posed a serious threat to access to justice in employment disputes, the latest ET statistics published by the Ministry of Justice (MOJ) provide it.

The most recent figures, which cover April to June 2014, show that the downward trend in the number of claims brought, which has been recorded for every quarter since fees were introduced in July 2013, has continued. Single claims have fallen by 70% compared with the same period in 2013, with multiple claims down from 1500 to just 500. Furthermore, the introduction in April 2014 of Acas’s early conciliation scheme has had an impact on the number of claims lodged.

Under the scheme, there is a mandatory requirement that Acas must be notified of any dispute before an ET claim can be made. This is to facilitate efforts to settle the dispute. One effect of this is that cases which do end up with the ET now face a time lag of about a month while Acas has an opportunity to intervene. Another effect is that the statistics for April to June 2014 are not directly comparable with the same period in 2013. Nevertheless, there is still a significant reduction.

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Tribunal fees mean workers can’t afford a fair hearing

Professor Morag McDermont, Professor of Socio-Legal Studies, University of Bristol

Professor Morag McDermont, Professor of Socio-Legal Studies, University of Bristol

It’s been a year since the government introduced fees for workers making a claim to an employment tribunal. The most recent statistics show that this has led to an 81% decrease in cases. This has profoundly worrying consequences for the future of employment law. Workers who have been unfairly dismissed, subjected to unlawful discrimination, or who have simply not been paid for work they have done now have severely limited access to justice.

So why has the sudden drop happened? Have employment relations in the UK suddenly improved? No. The reason is simply that the vast majority of workers who find themselves in dispute with their employers (or ex-employers, since many claims relate to dismissal) can no longer afford to seek justice.

Professor Nicole Busby, Strathclyde University

Professor Nicole Busby, Strathclyde University

The coalition government introduced the fees regime largely thanks to unsubstantiated assertions that employment tribunals provided a charter for workers to make unmerited claims and vexatious appeals. The restriction of access to justice on the basis of ability to pay may seem like a contradiction in terms, and the level at which fees have been set is far higher than those for making a comparable claim in the County Court.

In order to even submit a form which enables a claim to be lodged in the system, a worker must now pay between £160 and £250 depending on the nature of the claim. If the claim goes to a hearing, the aggrieved worker must pay a further £230 or £950. This means that in order for many serious claims to be resolved, alleged victims must pay £1200 alongside any other related costs. It is hardly surprising that four out of five people now decide not to proceed.

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