The Great British Fake Off

02 March 2017 -


There’s no proof that European judges like meddling with our employment laws

Mark Crail

Five years down the increasingly potholed road, we may look back on the furore over Brexit and wonder what all the fuss was about.

All those jobs in and around the financial-services sector that no longer exist because the banks have fled to Frankfurt or Dublin? No need to worry when lots of vacancies are opening up in a fruit-picking sector starved of overseas labour.

Problems in the NHS because someone told all the doctors and nurses from other parts of the EU that they were no longer required? Well, with art history and archaeology cleared from the school curriculum, we can work up the NVQ Level 2 in orthopaedic surgery.

But, hey, at least we will get our sovereignty back. No more of that European Court of Justice (ECJ) overruling our good old British judges.

Except that, in the employment field at least, that has never been the case anyway. In all honesty, it is a struggle to find any major ECJ rulings in recent years that have overturned UK Employment Appeal Tribunal (EAT) decisions.

Think back and what springs to mind? A case involving a BA worker being removed from public view for refusing to stop wearing her crucifix, perhaps. Except, in that instance, the final appeal was to the European Court of Human Rights (ECHR), and it really makes no difference how hard a Brexit we execute – the ECHR has nothing to do with the EU.

Then there is the Nolan case, in which employees at a US Army base in Hampshire claimed the US government had failed to consult them properly over planned redundancies. The case went to an employment tribunal, then to the EAT and finally to the Court of Appeal, which referred it to the ECJ.

But the ECJ took one look and chucked it right back, pointing out that it actually had no authority to deal with the case.

There’s also been the long-running saga over holiday pay and commission known as the Lock case. Here, the courts, both UK and European, have been struggling to fit together a hoary old bit of UK legislation dating back to 1963 with modern employment practices, as well as the more modern Working Time Directive (EU law) and Working Time Regulations (UK law).

The case rumbles on but so far the EAT (and, behind the legal scenes, the government) has been keen to ensure that, whatever UK legislation might say, what it really means is what is in the directive.

In fact, it might open up a whole can of worms for the government if the ECJ disagrees. So no complaints from ministers there if European judges want to impose their will on the UK.

Of course, there are instances where the British and European courts do not see eye to eye. In 2013 there was an EAT decision involving the shopworkers’ union USDAW that threw the consultation process for collective redundancies into chaos, to the surprise of neutral observers.

The ECJ overturned that and returned the law to its previous state. No doubt USDAW and the Woolworths workers who lost out on bigger payouts when the chain closed were less than amused.

But you could hardly characterise it as Europe riding roughshod over the settled will of the UK Parliament and legal system.

So, no, quitting the EU because we think it will give us back our sovereignty by preventing European judges from meddling with legislation passed by British MPs and interpreted by British courts is, as arguments go, something of a non-starter, at least as far as the employment field is concerned.

So let’s get back to real debate about building a booming post-Brexit economy on the export of exotic jam. At least if a baking-based format works we can always sell it to someone else.

Mark Crail is content director at XpertHR. Tweet him: @Payintelligence

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