The Free Movement Law - Essay Example

The free movement of persons is a fundamental cornerstone of the EU defined under the Treaty as an important pillar of the internal market and Articles 39-45 have enshrined the free movement of workers and reciprocal rights within the EU. In terms of the impact on the UK, the incorporation of community law through the implementation of the European Communities Act 1972(the ECA), which expressly gives legal effect to EC law has led to the creation of what has been described as “a new legal order,1” which has fundamentally changed the dynamic of the employment relationship by the plethora of EU initiated employment legislation geared towards increasing employee rights and maintaining the objective of free movement of persons within the EU. Conversely, Saint-Paul comments that “Governments ought to directly tackle issues such as adverse selection, risk aversion and unequal bargaining power in labour markets with finely tuned tools, rather than bluntly hammering them with EPL2”. The focus of this paper is to critically evaluate the impact of EU initiated legislation as implemented in the UK and their impact on employee rights and relations. It is submitted at the outset that the plethora of EU initiated legislation governs a wide category of fields fundamentally altering the position of the employee within the workplace by offering enhanced protection in areas such as working time, health and safety and parental rights regarding leave and pay. As such, a discussion of the complete extent of UK implemented employment legislation is outside the parameters of this analysis, which necessarily requires a focused approach. To this end, I shall firstly consider the economic impact of legislation on employers in the UK, followed by a discussion of fundamental pieces of legislation pertaining to employee rights for sex and race discrimination, disability discrimination and equality. In considering the economic impact of employment legislation, it has been posited that “employment legislation raises firm’s labour costs and adds to their administrative burdens”. This is found to particularly be the case in relation to legislation relating to individual employment rights as opposed to collective rights under trade union recognition laws for example. Moreover, it is further argued that market context will impact a firm’s ability to respond to employment legislation and that the economic impact of legislation is inherently dependant on the nature of rights being conferred. For example, the Department of Trade and Industry’s research into “the impact of employment legislation on small firms” commented that the Working Time Regulations for example had minimum impact due to the opt-out provisions. Alternatively, the Report commented that the following areas of employment legislation had the most economic impact: 1) Maternity and parental leave; 2) Equal pay and discrimination issues; 3) Unfair dismissal and related rights. Arguably the most significant development of UK employment law has been in addressing gender equality within the workplace. One of the most significant pieces of legislation in this area is the Equal Pay Act 1970 (EPA) particularly for women, which provides for the right to equal terms, pay and conditions of employment as their male counterparts. The EPA rights have been further bolstered by the courts, which have generally adopted a liberal approach. However, the EPA provisions go further as a result of the Commission of the EC v UK decision, where it was held that there where an employee’s work was dissimilar to a man’s she could still bring a claim if she thought it was just as valuable. This decision resulted in the 1983 Equal Pay Amendment Regulations and under section 1(2)(c) of the EPA an individual an bring a claim for equal pay where her work in terms of the demands it makes on her in terms of skill and decision is of equal value to that of a man. Alternatively, a significant area impacting employee rights has been the area of discrimination on grounds of sex, race and disability, leading to the implementation of the Sex Discrimination Act 1975 (SDA), the Race Relations Act 1976 (RRA) and the Disability Discrimination Act 1995 (DDA). With regard to sex discrimination, the SDA prohibits the less favourable treatment on grounds of sex or marital status3 . It is also important to highlight that the Sex Discrimination (Indirect Discrimination and burden of proof) Regulations 2001 means that burden of proof is on an employer to disprove in prima facie cases of discrimination. Whilst the sex discrimination legislation protects discrimination on grounds of sex, the SDA provisions had come under criticism for failures to address discrimination of individuals on grounds of sexual orientation, which has been undermined by the lacuna in the law. This has now been alleviated by the Employment Equality (Sexual Orientation) Regulations 2003. More recently, the Equal Treatment Directive 2002/73 was implemented in 2005, implementing changes to the Sex Discrimination Act 1975 and the Equal Pay Act 1970. The primary objective is to further widen the scope of legal protection against sex discrimination in the employment context. If we consider disability rights protection, in addition to the DDA, the implementation of the Equality Act 2006 (EA) with the Commission for Equality and Human Rights (CEHR), which imposes equality checks on employers. Whilst the plethora of employment legislation is geared towards addressing imbalances in the workplace, the DTI report indicated that the central impact on employers has been the curtailing of decision making powers of employers. However, whilst the central justification for employment protection legislation is to address the weaker position of the employee is meritorious, it has been questioned whether the resultant “employment tax” furthers employee protection objectives in the long run. Saint-Paul highlights the point that “under free entry, pure profits vanish, so it is not possible to redistribute from firms to workers: policies that reduce profits simply reduce entry and lower employment”. Ultimately, this will depend on the market position of the relevant employer and it is submitted that the central significance UK employment legislation has been to shift the dynamic of the contemporary employment relationship towards an employee centric approach. Read More