Constantinos Parissis - UMIST MBS - MScThesis

Enforcing EU Employment Law in the UK
The Pending Directives on Individual Labour Law
and the Consequences of their Forthcoming
Implementation
A Thesis submitted to the
THE UNIVERSITY OF MANCHESTER
INSTITUTE OF SCIENCE AND TECHNOLOGY
for the Degree of
Master of Science in International Business
by
Constantinos Parissis
Manchester School of Management
The University of Manchester
Institute of Science and Technology
September 1999

DECLARATION
No portion of the work referred to in this thesis has been submitted in support of an
application for another degree or qualification of this or any other university or other
institute of learning.

ACKNOWLEDGEMENTS
I would like to express my gratitude to Professor Jill Rubery, who supervised this study,
for her support, guidance and understanding.
Special thanks are given to Brian Bercusson, Professor of European Law in the
University of Manchester, for his invaluable suggestions, although he was carrying no
obligation to help.
I would like to thank Dr. Dave Murphy and Dr. Jiens Peter Reinhardt from the
Manchester School of Management for their precious advice and encouragement.
I would also like to thank Ioannis Manoledakis, Professor of Penal Law in the Aristotle
University of Thessaloniki, for his highly influential teaching that made me think as a
legal scientist, as well as C. Hadjiconstantinou, Professor of International Law and L.
Kotsiris, Professor of Company Law in the same University, for recommending me to
UMIST.
Finally, I would like to express my deepest love and gratefulness to my parents who
once again supported me with any possible means in fulfilling my dreams.
Στην Ειρήνη µας

7
ABSTRACT
This study has two objectives: firstly, to interpret the pending in the UK Directives on
Individual Labour Law; and, secondly, to assess the impact of their forthcoming
implementation on the employees and business in the UK. The Directives examined are
those on the Burden of Proof in Cases of Discrimination Based on Sex, Parental Leave,
Part-time Work, Fixed-term Work and on the Posting of Workers.
The first two Chapters constitute the literature review. Chapter 1 refers to the legislative
background and briefly covers the evolution of labour law in Western Europe, the
(E)EC and the UK, the institutional framework of the European Union, the main sources
of EU Labour Law, the legislative process in the EU and the hierarchy between Union
and national laws. Chapter 2 includes an overview of the most important of the existing
analyses reviewed, and a summary of the current legislation in the UK.
Chapters 3-6 constitute the legal interpretation of the Directives: Chapter 4 covers both
of the Directives on ‘atypical work’ (part-time and fixed-term work), while each one of
the other chapters concern each one of the rest of the Directives. This part of the study
reveals several issues of legal and practical importance, as the Directives’ major
weaknesses and limitations, as well as potential problems related with their
implementation.
In Chapter 7 we attempt to assess the most important direct and indirect effects of the
regulations on the employers, the workers and the employment conditions.
The final part (Conclusions) provides a synopsis of the most important points of the
analysis, associating the findings of the legal interpretation (from ch. 3-6) with the
findings on their impact (from ch. 7).
The law is as stated at 1 September 1999.

9
Table of Contents
ABSTRACT ..................................................................................................................... 7
TABLE OF CONTENTS ................................................................................................. 9
LIST OF ABBREVIATIONS ........................................................................................ 15
INTRODUCTION ........................................................................................................ 17
I. AIM OF THE RESEARCH .........................................................................................17
II. ACADEMIC RELEVANCE.......................................................................................17
III. SCOPE OF THE RESEARCH...................................................................................18
III. a. Directives to be Examined......................................................................................................18
III. b. Directives Excluded...............................................................................................................19
IV. RESEARCH METHODOLOGY...............................................................................20
IV. a. Legal analysis.......................................................................................................................21
IV. b. Socio-economic analysis........................................................................................................23
V. STRUCTURE ...........................................................................................................23
REFERENCES ..............................................................................................................24
CHAPTER 1
LITERATURE REVIEW, PART I: PRESENTATION OF THE CONTEXT...... 25
A. THE LEGISLATIVE BACKGROUND .....................................................................26
A.1 The Evolution of Labour Law in Western Europe...................................................26
A.2 The Evolution of European Labour Law within the EEC ........................................27
A.2.a 1957-1973: The Market Approach of Labour Issues..................................................................28
A.2.b 1974-1980: The ‘Golden Era’ of European Labour Law ...........................................................29
A.2.c 1981-1991: The Interaction between UK Politics and EEC Social Concerns...............................29
A.2.d The Developments in Maastricht.............................................................................................30
A.2.e The Treaty of Amsterdam........................................................................................................30
A.2.f An Overview: European Social Policy......................................................................................31
A.3 The Evolution of British Labour Law....................................................................31
A.3.a Collective Laissez-faire..........................................................................................................32
A.3.b Deregulation and the “End of Trade-unionism”.......................................................................32
A.3.c The role of Common Law .......................................................................................................33

10
A.3.d The British Labour Law in the Context of the EEC....................................................................33
A.4 The Interaction Between the UK and the (E)EC Labour Law ..................................34
A.5 Transposition of (E)EC Labour Law into Domestic UK Law ..................................35
B. THE EU INSTITUTIONAL FRAMEWORK ..............................................................35
B.1 The Basic Institutions ...........................................................................................36
B.1.a The European Parliament (EP)...............................................................................................36
B.1.b The Council ..........................................................................................................................36
B.1.c The Commission....................................................................................................................38
B.1.d The European Court of Justice................................................................................................39
B.2 The ‘Social Partners’............................................................................................40
C. THE MAIN SOURCES OF EU LABOUR LAW.........................................................40
C.1 Primary Sources of EU Labour Law: The Treaties..................................................41
C.2 The Directives as a Source of EU Labour Law.......................................................41
C.2.a Common Principles Across the Employment Related Directives.................................................43
C.3 Other Secondary Sources......................................................................................44
C.3.a Regulations...........................................................................................................................44
C.3.b Decisions..............................................................................................................................44
D. HIERARCHY BETWEEN EU AND NATIONAL LAW.............................................45
D.1 The Question of Supremacy of EU Law ................................................................45
D.2 Applicability and Effect of EU Law ......................................................................46
D.2.a Direct Effect.........................................................................................................................46
D.2.b Indirect Effect.......................................................................................................................47
E. THE LEGISLATIVE PROCESS ON LABOUR ISSUES IN THE EUROPEAN UNION48
REFERENCES ..............................................................................................................50
CHAPTER 2
LITERATURE REVIEW, PART II: THE PENDING DIRECTIVES ................... 51
A. PROBLEMS OF THE REVIEW.................................................................................52
B. EXISTING ANALYSES REVIEWED........................................................................53
B.1 An Overview .......................................................................................................53
B.1.a Catherine Barnard (1996): EC Employment Law .....................................................................54
B.1.b Catherine Barnard and Tamara Hervey (1998): European Union Employment and Social Policy
Survey 1996 and 1997............................................................................................................54
B.1.c Brian Bercusson (1996) European Labour Law........................................................................54
B.1.d Roger Blanpain and Chris Engels (1998): European Labour Law - and – Roger Blanpain and
Ioannis Koukiadis (1993): Community Law of Employment: before and after Maastricht.............55
B.1.e Mark Jeffrey (1998): Not Really Going to Work? Of the Directive on Part-time Work, ‘Atypical
Work’ and Attempts to Regulate it...........................................................................................56

11
B.2. Burden of Proof in Cases of Discrimination Based on Sex .....................................56
B.3 Parental Leave .....................................................................................................56
B.4 Atypical Work .....................................................................................................57
B.5 The Posting of Workers ........................................................................................59
C. THE DIRECTIVES FROM THE SCOPE OF BRITISH LABOUR LAW......................59
C.1 Burden of Proof in Cases of Discrimination Based on Sex ......................................60
C.2 Parental Leave .....................................................................................................61
C.3 Atypical Work .....................................................................................................62
C.3.a Part-time Work .....................................................................................................................63
C.3.b Fixed-term Work ...................................................................................................................66
C.4 The Posting of Workers ........................................................................................69
C.5 Concluding Remarks ............................................................................................70
REFERENCES ..............................................................................................................72
CHAPTER 3
THE BURDEN OF PROOF IN CASES OF SEX DISCRIMINATION ................. 75
A. GENERAL INFORMATION .....................................................................................76
B. CONTENT OF THE DIRECTIVE..............................................................................78
B.1 Definitions...........................................................................................................78
B.1.a Principle of Equal Treatment..................................................................................................78
B.1.b Indirect Discrimination..........................................................................................................78
B.2 Purpose and Manifestation....................................................................................80
B.2.a The Burden of Proof ..............................................................................................................81
B.2.b Information...........................................................................................................................81
B.3 Scope..................................................................................................................82
B.4 Other Provisions ..................................................................................................83
C. IMPLEMENTATION IN THE UK.............................................................................83
REFERENCES ..............................................................................................................87
CHAPTER 4
PARENTAL LEAVE ................................................................................................... 89
A. GENERAL INFORMATION .....................................................................................90
B. CONTENT OF THE DIRECTIVE..............................................................................91
B.1 Purpose, Manifestation and Function.....................................................................91
B.1.a The Right to Parental Leave ...................................................................................................92

12
B.1.b The Entitlement to Time Off on Grounds of Force Majeure........................................................94
B.2 Scope..................................................................................................................95
B.2.a Limitations Regarding Parental Leave.....................................................................................95
B.2.b Limitations Regarding Time Off..............................................................................................96
B.3 Other Provisions ..................................................................................................97
C. IMPLEMENTATION IN THE UK.............................................................................98
C.1 Parental Leave .....................................................................................................99
C.2 Time Off from Work ..........................................................................................100
REFERENCES ............................................................................................................102
CHAPTER 5
ATYPICAL WORK ................................................................................................... 103
A. GENERAL INFORMATION ...................................................................................104
A.1 Definitions ........................................................................................................106
A.1.a Atypical Work .....................................................................................................................106
A.1.b Part-time Work....................................................................................................................107
A.1.c Fixed-term Work..................................................................................................................108
A.1.d Temporary Work .................................................................................................................108
A.1.e The ‘Comparative Employee’................................................................................................108
B. THE DIRECTIVE ON PART-TIME WORK.............................................................109
B.1 Purpose and Manifestation..................................................................................109
B.1.a The Removal of Discrimination.............................................................................................110
B.1.b The Improvement of the Quality of Part-time Work.................................................................111
B.1.c Facilitating the Development of Part-time Work on a Voluntary Basis......................................112
B.1.d Contributing to the Flexible Organisation of Working Time (…)..............................................114
B.2 Function and Scope............................................................................................114
B.2.a The General Principles and Minimum Requirements...............................................................114
B.2.b Other Functions ..................................................................................................................116
B.3 Other Provisions ................................................................................................116
C. THE DIRECTIVE ON FIXED-TERM WORK..........................................................117
C.1 Purpose and manifestation ..................................................................................117
C.1.a The Application of the Principle of non-discrimination ...........................................................118
C.1.b The Improvement of the Quality of Fixed-term Work...............................................................119
C.1.c The Establishment of a Framework to Prevent Abuse..............................................................120
C.2 Scope................................................................................................................121
C.3 Other Provisions ................................................................................................122
D. IMPLEMENTATION IN THE UK...........................................................................122

13
D.1 Part-time Work ..................................................................................................122
D.2 Fixed-term Work ...............................................................................................124
REFERENCES ............................................................................................................125
CHAPTER 6
POSTED WORKERS ................................................................................................ 127
A. GENERAL INFORMATION ...................................................................................128
B. CONTENT OF THE DIRECTIVE............................................................................130
B.1 Definitions.........................................................................................................130
B.1.a Social Dumping...................................................................................................................130
B.1.b Home and Host State ...........................................................................................................130
B.1.c Worker................................................................................................................................131
B.1.d Posted Worker.....................................................................................................................131
B.1.e ‘Minimum Rates of Pay’.......................................................................................................132
B.1.f ‘Non-significant Work’ .........................................................................................................132
B.1.g ‘Universally Applicable Collective Agreements or Arbitration Awards’....................................132
B.1.h Equality of Treatment...........................................................................................................132
B.2 Scope................................................................................................................133
B.2.a General Applicability...........................................................................................................133
B.2.b Exemptions and Derogations................................................................................................134
B.3 The Basic Principle and the Key Provisions .........................................................135
B.3.a The Basic Principle..............................................................................................................136
B.3.b The General Level of Protection............................................................................................136
B.3.c Sources of Applicable Regulations.........................................................................................137
B.4 Function............................................................................................................138
B.5 Other Provisions ................................................................................................140
C. IMPLEMENTATION IN THE UK...........................................................................142
REFERENCES ............................................................................................................143
CHAPTER 7
IMPACT ASSESSMENT........................................................................................... 145
A. THE METHODOLOGICAL APPROACH................................................................146
B. THE DIRECTIVE ON THE BURDEN OF PROOF...................................................148
C. THE PARENTAL LEAVE DIRECTIVE...................................................................150
Note on the Governmental Resources.............................................................................................150
C.1. Parental Leave ..................................................................................................151

14
C.1.a Direct Impact on the Employees............................................................................................151
C.1.b The Gender Impact..............................................................................................................153
C.1.c The Impact on Business........................................................................................................156
C.1.d Impact on Employment Conditions........................................................................................157
C.2 Time off ............................................................................................................158
D. THE DIRECTIVES ON ATYPICAL WORK............................................................159
D.1 The Directive on Part-time Work ........................................................................159
D.1.a Scope.................................................................................................................................159
D.1.b Governmental Estimations...................................................................................................159
D.1.c The General Level of Protection ...........................................................................................162
D.1.d The Trojan Effects of Clause 6(2)a........................................................................................168
D.2 The Directive on Fixed-term Work......................................................................169
E. THE POSTED WORKERS DIRECTIVE ..................................................................171
REFERENCES ............................................................................................................173
CONCLUSIONS......................................................................................................... 175
SELECTED BIBLIOGRAPHY ................................................................................... 181
INTERNET RESOURCES........................................................................................... 187
APPENDIX I
SELECTED ARTICLES OF THE EC TREATY............................................................189
APPENDIX II
THE PENDING DIRECTIVES.....................................................................................195
APPENDIX III
SELECTED RULINGS OF THE COURT OF JUSTICE ................................................239
Note on the numbering of the Articles of the EC Treaty: unless explicitly stated, the
numbering is as it appears in the Treaty of Rome and its following amendments, until
Maastricht. Thus, the numbers of the Articles do not correspond to the numbers of the
consolidated texts of the EC Treaties.

15
List of Abbreviations
CEEP European Centre of Enterprises with Public Participation
EC European Community
ECJ European Court of Justice
ECSC European Coal and Steel Community
EEC European Economic Community
EP European Parliament
ETUC European Trade Unions Confederation
EU European Union
IRS Industrial Relations Services
IRSET Industrial Relations Services – Employment Trends
SPA Social Policy Agreement
TEU Treaty on the European Union
UNICE Union of Industrial and Employers’ Confederations of Europe
TU(PE) Transfer of Undertakings (Protection of Employees) (Act)
EqPA Equal Pay Act
LIFO Last In First Out
ERA Employment Relations Act
TULR(C)A Trade Union and Labour Relations Consolidation Act
CAC Central Arbitration Committee
EAT Employment Appeal Tribunal
SDA Sex Discrimination Act
RRA Race Relations Act
RIA Regulatory Impact Assessment
DTI Department of Trade and Industry

17
INTRODUCTION
I. Aim of the Research
The primary purpose of this research is to interpret the new, to the UK,
regulations on Individual Labour Law emanating from European Union Directives.
However, instead of introducing a strictly legal document expanding the legal
discussion over the new legislation, we will attempt to examine the regulations in the
context of their foreseen implementation and to assess their impact, primarily on the
parties concerned (management and labour), as well as on the employment relations in
general.
II. Academic Relevance
The UK’s labour market being the least regulated in Europe and the present
number of European Union proposals on employment issues being rather large, keeping
up to date with legislation emanating from Europe is likely to become increasingly
important for UK employers over the forthcoming years (IRSET 671, p. 6), after the
Labour Government’s opt-in to the European Social Chapter (similarly IRSET 679, p.
16). Moreover, the volume of new regulations on employment issues is increased by
Britain’s peculiar position in the EEC and its successor the EU: for eighteen years
(1979-1997) the Conservative Administration followed a policy which, before 1989,
blocked the adoption of almost all employment legislation at European level and,
between 1989 and 1997, suspended the harmonisation of UK law to most of the

Introduction
18
European employment legislation, which must now be embodied in the national law.
This legislation, as a whole, touches virtually all known aspects of the employment
relationship and establishes individual employment rights, which to a great extent are
novel for the UK as mandatory regulations. Hence, the scrutiny of the forthcoming
legislation may be characterised as essential, not only for the employers but also for the
employees, and the examination of its prospective impact in the UK seems a high
priority.
III. Scope of the Research
This study is concerned with the employment legislation emanating from
Directives, since this form of Community action is the main instrument of implementing
law unification policies1
across the EU (Morris, P.E., 1989, pp. 242-243). More
specifically, it is focused on the Directives the implementation of which is pending in
the UK, either because they are novel as regulations or their implementation was
postponed by the previous Governments.
III. a. Directives to be Examined
During the summer and at the final stage of the research, two of the Directives
which were from the beginning intended to be part of it, the Directive on Parental Leave
and the Directive on Part-time Work, came into implementation by the new
Employment Relations Act (27/7/99). However, the Directives are at least partially
pending and, since their examination was deemed as compliant with the general
purposes of this study, their analysis was included in the final text. Moreover, on June
1
The importance of the Directives is such that Coopers and Lybrand Consulting, in an informative
brochure of 1988, was suggesting to its clients, in certain instances, even to rearrange their company or
group structure in anticipation of the requirements of forthcoming Directives, or to lobby for changes to
draft directives (Coopers and Lybrand, 1980).

Introduction
19
28 the Council adopted as a Directive the Framework Agreement on fixed-term work,
which was concluded by the Social Partners earlier this year (18/3/99). The text of the
Directive was published in the Official Journal on July 10 and became publicly
available on July 26. This Directive was also included. Thus, the Directives which shall
be examined are:
1. Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of
discrimination based on sex (to be implemented in the UK by 13/7/2001).
2. Directive 96/34/EC of 3 July 1996 concerning the framework agreement on parental
leave, concluded by ETUC, UNICE and CEEP (to be fully implemented in the UK
by 15/12/1999).
3. Directive 97/81/EC of 15 December 1997 on part-time work (to be fully
implemented in the UK by 7/4/2000).
4. Directive 99/70/EC of 28 June 1999 concerning the framework agreement on fixed
term work, concluded by ETUC, UNICE and CEEP (to be implemented in the UK
by 10/7/2001).
5. Directive 96/71/EC of 16 December 1996 on issues related to posting of workers
(to be implemented in the UK by 24/9/1999).
III. b. Directives Excluded
The Directives which, although – at least partly – pending, have not been
deemed as compliant with the aims of this study, are:
1. Directive 98/59/EC of 20 July 1998 on collective redundancies. The reason for
excluding this Directive is that it does no more than consolidate the texts of
Directive 75/129/EEC of 17 February 1975 and its following amendment, Directive
92/56/EEC of 24 June 1992, both implemented in the UK.
2. Directive 94/33/EC of 22 June 1994 on the protection of young people at work. The
Directive has been excluded because all of its important parts have already been
implemented (i.e. the Health and safety - Young Persons - Regulations of 1997

Introduction
20
implemented articles 6 and 7 of the Directive, and the Children - Protection at Work
- Regulations of 1998 implemented article 4, as well as all other provisions related
to the employment of children).
3. Directive 98/50/EC of 29 June 1998, amending the Directive 77/187/EEC of
14/2/1977 on the protection of employees in cases of transfer of undertakings,
implemented in the UK with the Transfer of Undertakings (Protection of
Employees) (‘TU(PE)’) Act of 1977. The new Directive incorporates in the text of
the regulation the most important rulings of the European Court of Justice on the
issues it concerns, brings the amended provisions into line with the (above-
mentioned) Directive on collective redundancies and, in general, resolves several
problematic points of the amended text. Hence, although very important, it can be
considered more as an improvement of the existing regulations than as a novel piece
of legislation.
IV. Research Methodology
The study in its entirety follows the Aristotelian principles, employing the four
basic tools of reasoning: analysis, meaning the dividing of “the complex until the
reaching of the simplest possible elements, the ones that cannot be divided further…”
(Aristotelis, ‘Politica’ 1252a 18-20), in chapters 3-6, induction and production, mainly
in chapter 7, and synthesis of the findings, in the conclusions.
Also, due to its atypical nature as a multidisciplinary academic paper, the study
employs various methods of methodology in order to reach the stated goals, which in
total represent three different phases of collecting and analysing empirical evidence
(Yin, 1994, p. 3): the ‘exploratory’ phase (to identify which the new regulations are),
the ‘descriptive’ phase (what the regulations prescribe) and the ‘explanatory’ phase
(legal interpretation and estimation of their further impact).
For the ‘exploratory’ phase, the data being legal and thus restricted in certain
formal sources, logically the method to be used is a non-critical review (equivalent to

Introduction
21
Yin ‘s ‘archival analysis’) of the official documents setting out the regulations. For the
‘descriptive’ phase2
, the method to be employed is a critical review of informal
resources of legal reading, that is legal books and legal or managerial periodicals with
reference to the issues concerned. The ‘explanatory’ phase consists of two parts: the
legal analysis, which refers to the interpretation of the regulations, and the socio-
economic analysis, which aims to assess the impact of the legislation to the parties
concerned and the employment relations.
IV. a. Legal analysis
The legal analysis concentrates primarily on the interpretation of the Directives
already presented (paragraph III.a supra), but also refers to UK legislation existing
before the implementation of these Directives. During this analysis, three major
methodological problems were encountered.
Firstly, the fact that I was taught the Law in Greece, the legal system of which is
based on Civil Law, influenced me to consider case law as a tool for reference and not
as a set of rulings with universally binding features. However, it would be
methodologically inappropriate to overlook the fact that, under Common Law, the case
law in the UK plays a significantly more enhanced role, being a source of legislation
equivalent to the statutes (Stamatis, 1991, p. 83). The solution which was found
appropriate was to generally rely on the opinions expressed by British legal scientists,
regarding the UK’s legal environment, and to accredit to British case law the specific
gravity given by them at every instance.
The second methodological problem encountered was in regard to the case law
of the European Court of Justice and the manner in which it should be treated. The
Court, according to Steiner and Woods (1998, p. 31), in developing the substantive law
2
The term ‘descriptive’ refers only to the chronic phase of selecting data, not to the way of presenting it
in the text of this study, which effort has been made to be highly critical.

Introduction
22
“draws on principles and traditions from all the Member States. Since the EC Treaty is a
framework Treaty the Court has been extremely influential in ‘filling the gaps’, and in
doing so has created law (…)”, something which is apparent in several rulings on cases
of Sex Discrimination (ibid)3
. The problem is that, in doing so, the Court is following its
own way, which is similarly surprising for the scientists or judges of both legal systems:
a court to create law is in principle unthinkable from the scope of view of Civil Law; at
the same time, as Lord Diplock stated4
, the ECJ “applies teleological rather than
historical methods (…), it seeks to give effect to what it conceives to be the spirit rather
than the letter of the Treaties (…) [which] sometimes indeed, to an English judge, (…)
may seem to the exclusion of the letter”. To overcome this problem, whenever
appropriate, we will distinguish the interpreting Clauses from the law-making ones and
we will read them with respect to their legal substance.
The third methodological problem was the small quantity of available European
case law on the basis of the new legislation, because of its novelty. Hence, the
utilisation of European case law as a tool for validating the opinions expressed in
published legal studies concerning the herein examined Directives will be limited.
Nonetheless, whenever there exist rulings relevant to the subject of this study, they will
be cited5
.
All kinds of resources, formal, informal and juridical - the latter when available -
will be examined from the point of view of analytical jurisprudence, as the doctrine was
(re)defined by H.L.A. Hart in 1961: “The legal scientist perceives the Law as granted,
enacted by the qualified State Authorities. […] The legal scientist keeps to a logical
reconstruction of the meaning of the rules of definite law, as they apply, [the scientist
being] distant of axiological thinking. This thinking is related to ideological positions of
3
That is even more obvious if we consider that, in most of the Directives examined in this study, it is
mentioned as one of their purposes to come to terms with rulings of ECJ, when one would normally
expect the reverse.
4
In R v Henn [1981] (cited in Steiner and Woods, ibid)
5
See also Appendix III

Introduction
23
subjective nature, however the exercise of the legal science has to be ideologically
unprejudiced, in aim to be conditioned by scientific objectivity” (Stamatis, ibid, p. 92).
IV. b. Socio-economic analysis
For this part of the analysis (chapter 7, Impact Assessment) we will employ
three different methods, each one where appropriate, which may provide credible data
for each of the aspects investigated:
- National and European Secondary Data: Use of secondary data resources providing
figures about the employment in the UK and the EU, which will be used as tools for
measuring the prospective impact of the new regulations, as well as previous
research – particularly surveys – referring to the implementation of these
regulations.
- Literature review: Critical review of opinions expressed by specialists and
researchers, forecasting the impact of the new regulations to the UK.
- Scenario analysis.
V. Structure
In the main part of the study, we will firstly expound the Directives, analysing
their content in terms of the legal meaning, effect and function, with particular interest
to potential weaknesses, as well as to implications which may derive from their foreseen
implementation (chapters 3-6). Secondly, we will point out ways by which these
Directives may affect the employers and the employees, as well as the employment
relations in the UK in general (chapter 7). Chapters 1 and 2 are a literature review over
the legal context and the pending Directives, respectively. After the last chapter of the
main part (7) we will draw the conclusions.

Introduction
24
REFERENCES
Coopers and Lybrand Consulting, (1988) informative brochure: “Europe: The EEC
Directives”
Hart, H.L.A. (1961) The Concept of Law. Oxford: Oxford University Press
Industrial Relations Services - Employment Trends issue 671: “Employment law
update: what’s next from Brussels?”, January 1999
Industrial Relations Services - Employment Trends issue 679: “Towards a one-speed
Europe?”, May 1999
Morris, P. E. (1989) “The Direct Effect of the Directives - Some Recent Developments
in the European Court - part I”, Journal of Business Law, May 1989, pp. 233 - 245
Stamatis, C. (1995). The Foundation of Legal Reasoning: Introduction to Legal
Methodology. Thessaloniki: Sakkoulas
Steiner, J. and Woods, L. (1998). Textbook on EC Law. London: Blackstone Press Ltd
Yin, R. (1994). Case Study Research. London: Sage publications

25
CHAPTER 1
Literature Review
Part I
Presentation of The Context

Chapter 1
26
A. THE LEGISLATIVE BACKGROUND
A.1 The Evolution of Labour Law in Western Europe
From an article of Mark Jeffrey (1997, pp. 205-228) we can summarise the
historic development of labour law in Western Europe as follows:
In the geographical area of the European Union, historically, the accumulation of
regulations in the areas of labour law and social security law was the result of a series of
responses to perceived threats to the established social order. “Any benefits for the
workers concerned were largely the means to the end being aimed at (that is, social
stability), and not to the ends in themselves” (p. 206). Some workers in a relatively
weak industrial position – especially women and children – were the subject of some of
these laws, but the main focus remained on those workers who were perceived as the
principal threat to the social order: mostly the unionised, skilled, male, manual workers
in heavy industry – the ‘typical’ workers. Since the end was social stability, eventually
the workers who were not perceived as a threat – the ‘atypical’ workers – were ignored
or deliberately excluded by legislature, the exclusion being occasionally reinforced by
the courts and, sometimes, by collective agreements.
Throughout the countries which now constitute the European Union, the
conception of ‘social rights’6
is relatively recent, as it was developed in the last few
decades during which perceptions of law and rights, of work and of workers have all
6
Koukiadis (1985, p. 1-5) attributes the labour legislation to the need of protection of the weak part of
the employment contract, the worker, against the potential peremptoriness of the strong part, the
employer.

Literature Review: The Context
27
been changing. Factors which influenced this evolution were the vast increase in the
volume of the legal and collective regulation of work, and parallel with this, the
expectation that all workers should enjoy the same social rights. The sharp decline in
heavy industry and the growth in services, which have greatly emphasised the
importance of forms of work which do not correspond to the ‘typical’ stereotype, made
the exclusions of workers from social legislation to seem unfair. Finally, the way in
which women’s work is perceived has changed and is now widely accepted as it should
not be undervalued, although this principle is still “far from having been translated into
practice” (ibid, p. 206).
A.2 The Evolution of European Labour Law within the EEC
According to Bercusson (1996, p. 8) the national laws in the original six
Member States were not conceived of in terms of the European Communities. However,
the evolution of labour law and social law of the Community was inevitably influenced
by the mature and maturing conceptualisations of the national labour laws of the
original Member States and of later adherents (ibid, pp. 9-10, also Barnard and Deakin,
1998, p. 135). Conversely, as (E)EC labour law and social law norms developed, they
began to influence the formulation and conceptualisation of national labour laws (ibid).
Hence, the two processes are now linked in a specific symbiosis (ibid). In formulating
(E)EC labour law, the law- and policy-making institutions of the EC had to come to
terms with these systems and were influenced by them7
.
7
Bercusson provides a number of examples from different periods that, according to him, illustrate the
historical continuity if this influence: “The insertion of Article 119 of the Treaty of Rome was due to
the insistence of France , concerned to extend its own legislation on equal treatment on men and
women. The Commission’s proposals beginning 1970s on workers’ participation in company structures
owe their inspiration to the German law co-determination. The Thatcher government’s declared policy
of labour law deregulation in Britain during the 1980s led to blockage of new EC social regulations
during that decade. The Danish tradition of basing law primarily on collective agreements between the
social partners (trade unions and employers’ associations) rather than legislation, and Italian emphasis

Chapter 1
28
A.2.a 1957-1973: The Market Approach of Labour Issues
The Treaty of Paris in 1951 on the ECSC provided its authorities with powers to
enable them to restructure the coal and steel industries. This included measures to deal
with the social consequences for workers in this process, including retraining, relocation
and housing (ibid).
The Treaty of Rome on the European Economic Community, “much closer in
spirit to the labour market policies of the Member States during the 1950s”, did not
follow the precedent of the ECSC (ibid, pp. 12). The EEC was founded to create a
common market in services, goods, capital and labour, having as cornerstone in the
social field the free movement of workers (ibid). But, freedom of movement for labour
in a common market as a founding objective is quite different from the objectives
associated with national labour laws and also those of international labour standards.
However, this primary association of EEC labour law with free movement provides the
initial context of labour and social law of the Community in its earlier stages (ibid).
Hence, the first fifteen years of the EEC (1957-1972) are usually identified as its
neo-liberal phase, with emphasising solely on free movement of workers and labour
mobility within the Common Market to the exclusion of other social policy initiatives
(ibid). The return to concerns on workers’ rights and industrial democracy initiatives
influenced EEC labour law only after the Paris Summit of 1972 and the Action
Programme of 1974 (ibid, pp. 10).
on the autonomy of the Social Partners, led to pressures allowing for EC labour law Directives to be
implemented through collective agreements. Finally, the experience of constitutionalisation of social
and economic rights in the new or revised constitutions of Greece, Spain, Portugal and the Netherlands
contributed to the formulation of the Community Charter of fundamental Social Rights of Workers of
December 1989” (1996, pp. 9-10).

29
A.2.b 1974-1980: The ‘Golden Era’ of European Labour Law
This period has been characterised as the “golden era of Labour Law” in the
EEC (Blanpain and Koukiadis, 1993, p. 60). The Action Programme, which was
adopted by the Council of Ministers on 21 January 1974, had as priorities the
achievement of total employment under better conditions, the improvement of living
and working conditions, the harmonisation of national labour laws of the Member
States, and the upgrading of the roles of labour and management in the planning and
adoption of social policies, together with the upgrade of the role of the employees in the
enterprise (ibid, pp. 61-62). During that period the Council of Ministers adopted the
landmark Directives on equality between the sexes (equal pay, equal treatment, social
security) and the Directives on collective dismissals, acquired rights upon transfer of
undertakings and protection of workers in insolvency.
A.2.c 1981 - 1991: The Interaction between UK Politics and EEC Social Concerns
During the 1980s, the legislative process in the EEC in terms of Labour Law was
held back as a result of the British government’s counteraction8
. As a result, the
Community legislation was reduced only to health and safety issues. Thus, in the
following years the activity of the Community in the social field was characterised by
the conflict between the UK government, which was determined in blocking every
policy at the social field which was not in terms with its ‘deregulation’ plans, and the
attempts of the rest of the Member States and the EEC authorities to overcome the
British opposition. For reasons of conciseness, we will not continue with the
presentation of the issue, since it is discussed more extensively under section A.4.
8
According to all the sources reviewed

Chapter 1
30
A.2.d The Developments in Maastricht
The Treaty on the European Union, signed by the Member States of the
European Community on 7 February 1992, included a ‘Social Chapter’ in the form of
the Protocol on Social Policy (No 14) and an Agreement (‘Social Policy Agreement’)
annexed to the Protocol between all other Member States except the UK, also on Social
Policy (Bercusson, ibid, p. 35). The Protocol noted that the Member States “wish to
continue along the path laid down in the 1989 Social Charter [and] have adopted among
themselves an Agreement to this end”, and formed an integral part of the EC Treaty.
The Agreement was stated in the Protocol to be annexed to the Protocol and became,
therefore, part of Community law (ibid). Similarly, any measures adopted using the
institutions, procedures and mechanisms of the Treaty have had effects in Community
law, as far as all Member States except the UK were concerned. The UK ‘opted out’ of
the Social Chapter, the Agreement and the Treaty on the European Union (ibid, p.38),
but the British social partners remained within the organisations of labour and
management at EC level (ibid, p. 28). However, the exclusion was not considered to be
permanent and alternatives for the UK to ‘opt in’ were provided (ibid).
A.2.e The Treaty of Amsterdam
According to Barnard and Deakin (1998, p. 133), “the most significant part of
the Treaty of Amsterdam (…) regarding social policy was the introduction of a new
Chapter on Employment”. According to Article 1 of the new Title in the Treaty,
Member States and the Community shall “work towards developing a co-ordinated
strategy for employment and particularly for promoting a skilled, trained and adaptable
workforce and labour markets responsive to economic change”. However, the
protagonists remain the Member States: according to Article 3 the Community is to
support and, if necessary, complement their action. On the other hand, Article 4 permits
the Council to adopt certain labour market policies, albeit in the form of ‘soft law’,
drawing up guidelines on employment (ibid). The Luxembourg European Council of 21
November 1997 decided to put the new Title on Employment into effect immediately in

31
order to implement the provisions on co-ordination of Member States’ employment
policies from 1998. The co-ordination was based upon ‘employment guidelines’ drawn
up by the Commission, this time structured around the four ‘pillars’ of employability,
entrepreneurship, adaptability and equal opportunities (ibid).
A.2.f An Overview: European Social Policy
According to Barnard and Deakin (ibid), “the traditional model of social policy
at national level encompasses social insurance, public assistance, health and welfare
services and housing policy. Although both the EC Treaty and the Commission’s White
Paper of 1994 talk of a Community ‘social policy’, most of these concerns are absent
from the Commission’s concept of the term: in the place of the ‘traditional model’ there
exist rules relating to sex equality in the workplace (but not yet racial equality), health
and safety, and protection in the case of corporate restructuring. Therefore, the
terminology of ‘social policy’ masks what is in essence employment related social
policy – and an eclectic body of employment law at that” (ibid).
A.3 The Evolution of British Labour Law
At the dawn of the “one-speed” European Union, there are three main
characteristics of British Labour Law, which distinguish it from the legal systems on
employment that exist elsewhere in Europe: a singular relationship between collective
bargaining and social legislation, a degraded role of collective bargaining, and, in
general, minimal regulation of the employment relationship. The vicious circle, which
resulted in the current situation, can be briefly described as follows:

Chapter 1
32
A.3.a Collective Laissez-faire
From the beginning of the Industrial Revolution, legislation in the UK played a
relatively limited role in directly regulating employment relations, and the greater
importance traditionally was accorded to voluntary sources, of which collective
bargaining has been the most important (Deakin and Morris, 1998, p. 15). In 1954,
Kahn-Freund wrote that “there is, perhaps, no major country in the world in which the
law has played a less significant role in the shaping of [labour-management relations]
than in Great Britain” (ibid, p. 47). By this, according to the same authors, he meant that
“not only was collective bargaining, and not legislation, the principal source of norms
governing wages, working time and other terms and conditions of employment for most
workers; but also that legislation played little or no role in determining the form which
collective bargaining between labour and management should take”. Kahn-Freund
described the result as ‘collective laissez-faire’. And, although in this system “the state
was not absent, or neutral, still it retained for legislation the role of subsidiary to that of
voluntary bargaining” (ibid, p. 16).
A.3.b Deregulation and the “End of Trade-unionism”
As a result, in the beginning of the 1980 ‘s, formal labour law regulation was
comparatively weak in Britain, but extra-legal sources of regulation were
correspondingly strong, as part of the legacy of collective laissez-faire (ibid, p. 45). The
Conservative Administration of the years between 1979 and 1997 chose to adopt instead
a programme of economic ‘deregulation’ and further liberalisation, “designed to
promote product-market competition and reduce the size of the public sector” (ibid).
Reform of industrial relations and restructuring of the labour market were central parts
of this wider economic programme. Legislation limited and finally virtually abolished
the ‘collective laissez-faire’, at the same time as statutory employment rights were
qualified and in some instances removed completely, in favour of a return to the
common law institution of the individual contract of employment (ibid). “What was
perhaps most remarkable about this programme of reform was the use of labour law not

33
as a means of achieving distributive goals or embodying a notion of industrial - or social
- justice, but as part of an economic policy designed to foster competitiveness” (ibid,
p.39).
Furthermore, on the grounds that it would promote labour market flexibility,
within individual labour law a policy of partial or selective deregulation was adopted,
removing legal protections even for the young workers and the low paid (ibid, p. 43).
A.3.c The Role of Common Law
On the other hand, Common Law, which was favoured as a source of labour law
by the ‘deregulation’ process, had been traditionally sceptical of collectivism and
simultaneously consistent in aiming to retain conditions of economic liberalism, thus
reducing even more the employee protection in the workplace (similarly Deakin and
Morris, ibid, p. 14).
A.3.d The British Labour Law in the Context of the EEC
A comparative study of the labour law in the ten EEC members of 1982 and
Switzerland (Ellis and Storm, 19829
) shows that, even at the time when the labour
market in the UK was much more regulated than today, the employment conditions
were still far below the standards in the other European countries - members of the
EEC. Ever since, and while the labour market in Britain was following its individual
route to deregulation, the other Member States were strengthening even more their
social legislation. Hence, even if the EEC legislation represented the “lowest common
denominator” among the other Member States, the UK regulations stood below it.
9
See pp. 117-140, 152-160, 186-206, 247-257, 293-302, 337-340, 383-389, 430-441, 491-511, 550-553
and 598-604.

Chapter 1
34
A.4 The Interaction Between the UK and the (E)EC Labour Law
As already stated, the accession to the EC of the UK in 1973 coincided with the
beginning of a period of legislative activity in the field of EC labour law, which
according to Bercusson “has been so far unique” (ibid, p. 27). The impact of the five
Directives on equality issues and acquired rights, all adopted during that period, on
domestic labour and social law has been profound (ibid). The change of UK
government in 1979 led to the adoption of an official attitude of fundamental hostility to
the social dimension of the integration process (ibid) while, on the other hand, the trade
union and labour movement reversed their previous hostility (ibid, p. 31). It is
commonly accepted that, since 1979, EC legislative activity in the labour field has
largely halted in the face of the UK government’s rejection of almost all proposals from
the Commission, and their consequent failure to achieve the necessary unanimous
approval in the Council of Ministers10
.
According to Bercusson, “this UK veto was one of the reasons which led to the
initiation of the policy of stimulating the European Social dialogue as an alternative
path to a social dimension for the EC” (ibid, p. 28). During the 1980s, two more
strategies were developed to maintain and continue Community Social policy and
labour law (ibid, p. 65): “The first was the use of indirect financial instruments to
promote social policy initiatives and to further labour law objectives, with the principal
instrument the European Social Fund. The second involved amending the Treaty of
Rome to allow for qualified majority voting on social policy issues”. This culminated in
the Social European Act 1986, under which articles 100A and 118A were added to the
Treaty of Rome, although in the text of the Act there was no direct reference to Labour
Law (Blanpain and Koukiadis, ibid, p. 62). According to Bercusson, “the end result of
the tension was manifest in the Community Charter of Fundamental Social Rights of
Workers of 1989, which was signed by all the Member States with the exception of the
UK” (ibid, p. 28). However, the Charter was no more than expression (‘declaration’ or
10
From all sources, also referred in Bercusson (ibid).

35
‘reclamation’) of the political will of the signing parties, therefore it did not have any
legal effects (Blanpain and Koukiadis, ibid, p. 63, also Barnard, 1996, pp. 61-3).
As stated before, the UK opted-out of the Treaty on the EU, the SPA and the
Social Chapter. However, a change of government in the UK On May 1997 led to a
change of approach towards the Amsterdam Treaty negotiations (Barnard and Deakin,
ibid, p. 133) and the UK agreed to opt-in to the Social Chapter. As a result, the SPA was
merged with the Chapter on Social Policy (Articles 117-121) on the EC Treaty to form
part of mainstream Community law. The force of the Directives already adopted under
the SPA has been extended to the UK by the means of extension Directives under
Article 100 EC.
A.5 Transposition of (E)EC Labour Law into Domestic UK Law
According to Bercusson, EC social and labour law can be incorporated in the
UK by various ways and methods (ibid, p. 28). By the passing of primary legislation,
through the House of Parliament, or by secondly legislation, through acts of the
Administration: Section 2(2) of the European Communities Act 1972 gives power to the
Ministers to make regulations. Thirdly, the UK courts have accepted the EC law
doctrines of vertical direct effect (please see section B.2, infra) and that UK legislation
must be interpreted in accordance with the requirements of Community Law. If such
means do not secure the full and appropriate implementation of EC labour legislation,
the Commission is able to pursue infringement proceedings under Article 169 of the
Treaty of Rome.
B. THE EU INSTITUTIONAL FRAMEWORK

Chapter 1
36
B.1 The Basic Institutions
B.1.a The European Parliament (EP)
According to Blanpain and Engels (1998, p. 42), the EP consists of 626
‘representatives of the peoples of the States brought together in the Community’ (Art.
137 of the EC Treaty). Its members are elected by direct pan-European elections and
their mandate lasts 5 years. The EP is a very special parliament, in that there is not a
Government which has to rely on its confidence (ibid, p. 43). Also, for the EP to
exercise a certain control over the Commission and to censure the Commission’s
activities, a certain procedure has to be followed, which, according to Blanpain and
Engels, “constitutes such a huge task that it has no real significance in practice”. The EP
has a consultative and supervisory role, the latter being most important in regard to the
budget, and its legislative role is slowly expanding. Its important powers in relation with
employment law are in the cooperation and the conciliation procedure, which are
discussed under section E (infra). Except where otherwise provided in the Treaty, the
EP acts by an absolute majority of votes (ibid, p. 44).
B.1.b The Council
The Council of the European Communities, established by Article 1 of the
Merger Treaty of 1965, is undoubtedly the most important European institution, since it
is the principal European legislator (ibid, p. 44). According to Article 2 of that Treaty,
the Council “consists of representatives of Member States. Each Government shall
delegate to it one of its members.” Which member assists at a given meeting depends on
the agenda (ibid). If the Social Council meets, the Ministers competent for these affairs,
e.g. the Ministers of Employment will attend. The social council is one of the ‘sectorial’
or ‘specialised’ councils. If general points are on the agenda, the Ministers of Foreign
Affairs will meet in the General Council. The European Council is the Council of Heads

37
of Governments and Prime Ministers, which meets three times a year together with the
Ministers of Foreign Affairs. The Council is an institution of the Community. This
means that, although national interests are defended in the Council and the Ministers
defend the point of view of their respective Governments, Member States are bound to
take all necessary measures to realise the objectives of the Communities (Article 5 of
the EC Treaty).
The most important tasks of the Council relating to Labour Law are (ibid, p.
45):
- the organisation of free movement of workers (Art. 48-51 EC Treaty);
- the approximation of (labour) laws (Art. 100-102 EC Treaty);
- the elaboration of a social policy (Art. 117-122 EC Treaty);
- the implementation of decisions regarding the Social Fund (Art. 125 EC Treaty);
- the development of quality education and vocational training (Art. 126-127 EC
Treaty);
- the promotion of stronger economic and social cohesion (Art. 130A-E);
- the implementation of the Social Charter and the Agreement on Social Policy.
The Council acts by absolute majority, qualified majority or unanimity. Absolute
majority is the general rule (Article 148(1) of the EC Treaty). In practice, however, the
general rule is the exception and qualified majority is the rule (ibid).
In regard to labour law, a qualified majority is needed for the following issues:
- free movement of workers (Art. 49 EC Treaty);
- the establishment of the internal market (Art. 100A EC Treaty);
- the improvement of the working environment, health and safety of workers (Art.
118A EEC Treaty);
- economic and social cohesion under the Art. 130E (EC Treaty);
- the European Social Fund (Art. 125 EC Treaty);
- the implementation of the Maastricht Agreement on Social Policy (partly).

Chapter 1
38
Unanimity is required for decisions regarding the rights and interests of
employed persons (Art. 100A(2) EC Treaty) and for economic and social cohesion
purposes under the Art. 130D (EC Treaty);
B.1.c The Commission
The Commission consists of 20 members “chosen on the grounds of their
general competence and whose independence is beyond doubt” (Art. 157(1) EC Treaty).
Smaller countries have one national as a member and larger countries have two. The
Commissioners’ term of office is 5 years and is renewable (Art. 158 EC Treaty). The
Commission acts by majority vote (11 votes). Under the Maastricht Treaty, the EP has a
say in the appointment of the Commission. The Commission is, in contrast to the
Council, European par excellence (ibid, p. 47): Art. 157(2) of the EC Treaty prescribes
that “the members must, in the general interest of the Communities, be completely
independent in the performance of their duties”. In principle, they may neither seek nor
take instructions from any Government or from any other body and each Member State
has the obligation not to influence the members of the Commission.
Each Commissioner is accountable to the EP for all decisions taken by the
Commission. Nevertheless, there is a division of labour, which takes place under the
form of a distribution of portfolios: each Commissioner is thus competent for a number
of directorates-general. This means, for example, that the Social Commissioner is
responsible for “employment, industrial relations and social affairs, education and
training”. Directorate-general V is for employment, industrial relations and social
affairs.
The most important task of the Commission is undoubtedly its participation on
the ‘European legislative process’ (Art. 155 EC Treaty)11
. In quite a number of cases,
the Treaties indicate that the Council can only act on a proposal of the Commission. The
11
Please see subchapter E, infra.

39
Council can only act with unanimity if it amends such a proposal, while the
Commission is entitled to change its proposals, as long as the Council has not made a
decision, either at its own initiative, or at the request of the Council itself, of the EP, or
the Economic and Social Committee (ibid). Another important task of the Commission
is to ensure that the provisions of the EC Treaty “and the measures taken by the
institutions pursuant thereto are applied” (Art. 155 EC Treaty). If the Commission
considers that a Member State has failed to fulfil an obligation under the Treaty may
bring the matter to the ECJ (Art. 169 EC Treaty). It also has a decision-making power
of its own and is competent to conduct negotiations that may lead to the conclusion of
international agreements (ibid).
B.1.d The European Court of Justice
According to Art. 164 of the EC Treaty, the Court “ensures that in the
interpretation and application of this Treaty the law is observed”. The Member States
undertake to respect the competence of the Court regarding disputes concerning the
interpretation or the application of the Treaty (Art. 219 EC Treaty). It consists of fifteen
judges and is assisted by nine Advocates-General. The members of the Court are
proposed by the Governments of the Member States and their six-year term of office is
renewable.
The Court is competent to judge whether Member States live up to their duties
under the Treaties (Art. 169-170 EC Treaty), and to review the legality of the acts of the
Council and the Commission and whether they need to be declared void (Art. 173-174
EC Treaty). The Court has also the jurisdiction to make preliminary rulings concerning
the interpretation of Community law at the request of courts or judges of the Member
States (Art. 177 EC Treaty). These rulings are binding for the national judges. The
judgements of the ECJ are made in last resort and are consequently not susceptible to
appeal. They are enforceable in all Member States of the Community. Natural and
private persons also have access to the Court (ibid).

Chapter 1
40
In conformity with Art. 168A of the EC Treaty, a Court of First Instance was
attached to the ECJ, in order to ease the case load of the latter. Its jurisdiction includes
the disputes regarding the Communities and their staff, appeals by enterprises
concerning ECSC levies, production quotas, prices and competition, and certain appeals
relating to compensation concerning the points raised above.
B.2 The ‘Social Partners’
The most significant changes introduces by the Social Chapter relate to the way
that decisions are made and legislation is passed (Barnard, ibid, pp. 67-68). The Chapter
envisaged a twin-track approach: on the one hand legislative, following the usual
channels, subject to certain amendments to take account of the UK’s absence, and the
other collective. This second approach permitted the substitution of Community
legislation by an agreement between the Social Partners (usually referred as
‘management and labour’), reflecting an increased role for the Social Partners in the
EU, and incorporating subsidiarity as regards the choice, at Union level, between the
legislative and collective approach (Bercusson, 1994, ibid).
The recognised ‘Social Partners’ in the EU are the European Trade Unions
Confederation (ETUC), the Union of Industrial and Employers’ Confederations of
Europe (UNICE) and the European Centre of Enterprises with Public Participation
(CEEP). UEAPME, the organisation for small and medium sized enterprises, has
unsuccessfully challenged its exclusion from the negotiations on parental leave before
the Court of First Instance (Barnard and Deakin, 1998, p. 133)12
.
C. THE MAIN SOURCES OF EU LABOUR LAW

41
C.1 Primary Sources of EU Labour Law: The Treaties
The European Coal and Steel Community (Paris, 1951), the European Economic
Community (Paris, 1951) and the European Atomic Energy Community or EURATOM
(Rome, 1957), including their Annexes, Protocols and Conventions13
, constitute the
founding Treaties of the European Community (Blanpain and Engels, ibid, p. 35,
Barnard, ibid, p. 15) and the primary sources of Community Law. To these we should
add their amendments through the Merger Treaty of 1967 (Paris), the Single European
Act (1986), the Treaty on the European Union (Maastricht, 1991), and the latter
development, the Treaty of Amsterdam (1997), with their respective supplements.
Together, they form the backbone of the European Union, its “constitutional character”,
and thus take precedence over any secondary or derived legislation which conflicts with
their provisions (Barnard, ibid, p. 15). After the consolidation of the Treaties in
Amsterdam, the Primary Sources of Labour Law are addressed in Articles 39-42
(previously, 48-51) on the Free Movement of Workers, in Art. 125-130 (pr. 109N –
109S) on Employment, and in Art. 136-150 (pr. 117-127) on Social Policy, Education,
Vocational Training and Youth.
C.2 The Directives as a Source of EU Labour Law
The Directive is one of the three legally binding sources of secondary law, the
other two being the Regulation and the Decision (please see next section, C.3). It is
binding to the result to be achieved, upon each Member State to which is addressed, but
leaves to the national authorities the choice of form and method (Art. 189 EC Treaty).
Since it is only the result that counts, the implementation of a Directive can be done by
all appropriate legislative means (Blanpain and Engels, ibid, p. 55). The intention of the
12
Case T-135/96, Judgement of 17 June 1998.
13
Which form an integral part of the Treaties, according to Article 239 EC

Chapter 1
42
Directives is to harmonise (though not make identical) the law in Member States. The
employment related Directives are the main secondary source of EU employment law
(ibid).
The directives are produced after a long period of drafting by experts, exposure
for comment, approval by EEC bodies, redrafting and re-exposure. Comments on the
proposed directives may be made by individuals or representative bodies at many of
these stages. To cater for difficulties encountered in individual states or by individual
types of business (Coopers and Lybrand, 1980):
- “In many cases, ‘derogations’ are permitted allowing a Member State not to
legislate in accordance with particular terms of the directive but instead to enact
alternative legislation normally to achieve the same objective in a different
manner;
- A ‘contact committee’ has been established whereby the Member States can, in a
consultative capacity, review practical problems arising from the application of
directives and advise the Commission on any supplements or amendments to be
made to Directives”.
Due to jurisprudence of the European Court of Justice in several cases, a
question arose in terms of the direct effect of the Directives towards the national legal
systems (Morris, 1988, p. 233). The issue is further discussed in subchapter E (infra).
The Directives are Community law and not in themselves law directly
applicable in the Member States. They take the form of binding instructions by the
Council of Ministers to Member States, requiring them to enact law in accordance with
the provisions of the Directives (Blanpain and Engels, ibid p. 55). Individual Member
States’ governments are bound by the Treaty of Rome to comply with those
instructions. However, they may not be considered law in national level before being
transposed into national law by the national legislature (ibid).

43
C.2.a Common Principles Across the Employment Related Directives
This paragraph is not aimed at presenting the general principles upon which the
adoption of the Directives was based, but to cite principles which are common in the
texts of the Directives to be presented in the main analysis. It purpose is only to help in
not having to repeat remarks to be made upon the same issues.
Subsidiarity and Proportionality
The application of the principle of subsidiarity is an issue which has triggered a
longstanding legal debate in the EU. However, the most important thing in the
framework of this study is that the principle, found in the texts of all the Directives
related to this topic, means that action is being taken at Community level only when the
Member States cannot achieve a better regulatory result (Barnard, ibid p. 80). On the
other hand, proportionality means that the measures taken are “the minimum required
for the attachment of those objectives and [do] not go beyond what is necessary for the
purpose” (from the Directive on fixed-term work, recital 16). Both principles have been
set out by Article 5 of the Treaty of Rome (ibid). Another aspect of the principles is
commonly met in their provisions on implementation (usually the last set of provisions),
where the Directives declare that the Member States can maintain or introduce more
favourable provisions than the ones the Directives set out, and that the measures the
Directives provide do not prejudice the right of the Member States to introduce different
measures as long the principles declared in the main text of the Directives are respected.
Non Victimisation
According to Lewis (1997, p. 69), victimisation means the harassment by legal
or practical means “of people simply because they have given evidence in connection
with proceedings, have brought proceedings or intend to do so against someone” under
the provisions of the source of law in question. All of the Directives related to our topic
deny victimisation.

Chapter 1
44
Non Regression
This is another principle met in all the Directives to be examined. It deters the
Member States from reducing the general level of protection afforded to workers in the
field of the Directives.
C.3 Other Secondary Sources
The sources of secondary law are the Directives, the Regulations and the
Decisions, which are legally binding, and the Recommendations and the Opinions,
which are not binding (Blanpain and Engels, ibid , p. 55).
C.3.a Regulations
The Regulations have “general application”, are binding in their entirety and
“directly applicable in all Member States” (Art. 189(2) EC Treaty). A regulation is
clearly a generally binding norm, like an act of parliament (Blanpain and Engels, ibid, p.
55). It is immediately and directly binding without any specific intervention of the
national authorities. Consequently, they supersede national law; national law which is
contrary to a Regulations is null and void and may not be applied. Despite their
undoubted direct applicability, their direct effectiveness is conditional (Barnard, ibid p.
31) (please see next subchapter, D). In the case of a regulation with direct effectiveness,
the effect will be vertical and horizontal (ibid).
C.3.b Decisions
Like the Regulations, the Decisions are binding to their entity upon those to
whom they are addressed (Art. 189 EC Treaty). The can be addressed to natural or legal

45
persons (Blanpain and Engels, ibid, p. 57). They are not general norms: they are
directed to specific persons. Decisions which are addressed to the Member States can
have direct effect. They are notified to those to whom they are addressed and take effect
upon notification.
D. HIERARCHY BETWEEN EU AND NATIONAL LAW
D.1 The Question of Supremacy of EU Law
In the early case of Costa v ENEL the ECJ established that, where national law
conflicts with directly effective (please see paragraph D.2.b, infra) Community law,
Community law prevails (Barnard, ibid, p. 27). According to a – not unchallenged –
opinion expressed in Barnard (ibid, p. 28), on the basis of the judgement of the ECJ on
Simmenthal, the doctrine of supremacy of the Community law applies irrespective of
the nature of the Community provision (constitutive Treaty, Community Act or
agreement with a non-Member State) or the national provision (Constitution, statute or
subordinate legislation)14
; it also applies irrespectively of whether the Community
provision comes before, or after the national provision: in all cases the national
provision must give way to Community law.
14
However, ‘Areios Pagos’, one of the two supreme Courts of Greece, in a recent judgement denied the
application of the doctrine over the provisions of the Greek Constitution. Under the implications of such
a ruling, the issue has to be investigated further.

Chapter 1
46
D.2 Applicability and Effect of EU Law
It is not uncommon for the concepts of applicability and effect to be confused,
even in the case law of the ECJ15
. According to Winter (cited in Barnard, ibid, p. 31),
applicability connotes the quality of applying within the domestic legal system even in
the absence of implementing legislation. Effect describes the quality of giving rise to the
rights which an individual may rely on in a domestic court. A measure which is directly
applicable is not necessarily directly effective.
Another issue with importance for the needs of our analysis is in terms of the
vertical and horizontal effect of a Community provision: vertical effect means the
ability of a person to turn against a Member State (or the Community), relying on a
right provided by the Community provision, while horizontal effect means the ability to
turn against another person. It is accepted (ECJ rulings in Van Gend en Loos and
Defrenne II ) that the provisions of the Treaty have both vertical and horizontal effect.
D.2.a Direct Effect
From a dissertation written by J. Fairhurst (1997, pp. 34-40) we are informed
that the ECJ developed the principle of direct effect in Van Gend en Loos v Nederlandse
Administratie der Belastingen [1963]. “In that decision, the Court creatively established
that the Treaty may create rights which an individual may enforce directly in the courts
of the Member States. […] However, in establishing the general principle of direct
effect, the ECJ limited its scope only to those provisions which were sufficiently precise
and unconditional. […] A Community provision is unconditional when it is not subject,
in its implementation or effects, to any additional measures by either the Community
Institutions or the Member States. In order to be sufficiently precise (or clear and
15
See Defrenne II, [1976] Case 43/75, where applicability is mentioned but effect is meant (Barnard, p.
31)

47
unambiguous) it is necessary to be able to identify the persons who are entitled the
right, ascertain the content of that right, and identify the person/body liable to provide
that right. […] In Francovich v the Republic of Italy it was made clear by the Court that
the fact a Member State may have a number of possible options (or derogations)
available to it when adopting or implementing legislation will not necessarily prevent
the content of the measure from being adjudged to be sufficiently precise”.
For the EC Treaty Articles and the Regulations to have direct effect the only
conditions to be met are the ones described above. Also, their effect, once ascertained, is
always horizontal and vertical. As for the Directives, an additional condition applies:
the Directive in question not to have been transposed into national law within the time
limit specified in its body, either not at all or not correctly (Pubblico Ministero v Ratti
[1979]and Becker v Finanzamt Munster-Innerstadt [1982], cited in Barnard, ibid pp. 31-
32). Also, Directives can only have upward vertical effect (Marshall v Southampton
Health Authority [1986] and Dori v Recreb [1994], ibid). Their effect does not depend
on the capacity in which the State is acting, whether an employer or a public authority.
D.2.b Indirect Effect
The doctrine of indirect effect is of particular importance for the Directives.
According to this doctrine, the national courts “in applying national law, whether the
provisions on question were adopted before or after the Directive, the national Court
called upon to interpret it is required to do so, as far as possible, in the light of the
wording and the purpose of the Directive in order to achieve the result pursued by the
latter and thereby comply with the third paragraph of Art. 189 EC” (from Marleasing v
La Commercial International de Alimentacion SA [1990], cited in Barnard, ibid, p. 37).
Its most significant consequence is that it may offer an indirect way of achieving
horizontal direct effects of the provisions of a Directive. According to Fairhurst, the
British courts have been enthusiastic in applying the doctrine of indirect effect.

Chapter 1
48
E. THE LEGISLATIVE PROCESS ON LABOUR ISSUES
IN THE EUROPEAN UNION
There are four different routes by which European Commission proposals on
employment issues can become law. The relevant process is determined by the Article
of the EC Treaty on which the measure is based. IRSET (671, p. 8) summarises the
possible legislative routes as follows:
“The consultation procedure: Under this procedure, a proposal is submitted to the
Council of Ministers by the European Commission. Following consultation of the
European Parliament, and, in many cases, the Economic and Social Committee, the
Council may adopt the proposal on a unanimous vote.
The cooperation procedure: First, the Council adopts a “common position”, by qualified
majority voting, which is then put forward to the European Parliament for a second
reading. Then, the European Parliament either approves or takes no decision on the
common position; either of these actions leads to the automatic adoption of the proposal
by the Council. Alternatively, the Parliament can reject the proposal - in which case the
Council can adopt it only on an unanimous vote - or it may propose amendments, which
will lead to a new proposal by the Commission. Adoption by Council is by qualified
majority voting.
The co-decision procedure: The European Parliament has a right to veto proposals
where a common position has been reached by the Council. This right was established
by the Treaty of the European Union, which came into force on 1 November 1993.
The Social dialogue procedure: The recognised “Social Partners” - management and
labour representatives - can reach an agreement, under the social policy Protocol
(protocol number 14) and Agreement (Social Chapter) annexed to the Treaty of
European Union. The Commission is required to consult the partners on social
legislation, as well as on the content of the measure, before a proposal is submitted.

49
The employers’ and Trade Unions’ representatives that comprise the social
partners should forward an opinion or recommendation on the proposal to the
Commission. If they wish to negotiate, they have nine months to reach agreement,
though this may be extended by a joint decision of the Commission and the partners.
Agreement resulting from this process can be implemented either “in accordance with
the procedures and practices specific to management and labour and the Member
States” or, where requested by the social partners, by a Council decision on a proposal
by the Commission. The issue concerned determines whether the Council’s decision can
be taken by qualified majority voting or only on a unanimous vote.
Where the partners cannot reach agreement, or either side refuses to discuss the
subject matter, then the Commission may submit a proposal to proceed under either the
cooperation or consultation procedure. For example, following the refusal by the private
sector employers to engage in negotiations, the European Commission has advanced its
own proposal on national-level employee information and consultation”.

Chapter 1
50
REFERENCES
Barnard, C. (1996) EC Employment Law. Chichester: Wiley
Barnard, C. and Deakin, S. (1998) “European Community Social Law and Policy:
Evolution or Regression?” in Towers. B. and Terry, M. (Eds) Industrial Relations
Journal, European Annual Review 1997, pp. 131-137. Oxford: Blackwell
Bercusson, B. (1994) “The Dynamic of European Labour Law after Maastricht” in
Industrial Law Journal, 23(1)
Bercusson, B. (1996) European Labour Law. London: Butterworths
Blanpain, R. and Engels, C. (1998) European Labour Law Hague: Kluwer
Blanpain, R. and Koukiadis, I. (1993) Community Law of Employment: Before and
After Maastricht. Thessaloniki: Paratiritis
Deakin, S. and Morris, P.E. (1998) Labour Law. London: Butterworths
Ellis, Maarten and Storm, Paul (1982) Business Law in Europe. London: Kluwer
Publications
Jeffrey, M. (1998) “Not Really Going to Work? Of the Directive on Part-time Work,
‘Atypical’ Work and Attempts to Regulate It” in Industrial Law Journal 27(3)
September 1998 (Oxford University Press).
Lewis, David (1997) Essentials of Employment Law. London: Institute of Personnel
and Development
Morris, P. E. (1989) “The Direct Effect of the Directives - Some Recent Developments
in the European Court - part I”, Journal of Business Law, May 1989, pp. 233 - 245

51
CHAPTER 2
Literature Review
Part II
The Pending Directives

Chapter 2
52
A. PROBLEMS OF THE REVIEW
Regarding the review of previous work, the most important problem was the low
availability of books on British Labour Law with information valuable for the needs of
the legal analysis of almost all the issues of this subject. The novelty of the regulations,
because of which the review had to narrow and include only books written or updated
after 1996, aggravated the problem. Almost all of the available books were examined
(with the exception of Paul Lewis’ “Law of Employment” and Wallington’s
“Employment Law Handbook”).
Another problem was encountered also with the available editions of all of the
books on EC employment law written by British scientists after the adoption of the first
of the pending Directives (3/6/1996): the books of Brian Bercusson, of Catherine
Barnard and of Davies et al. (eds.) were all published in 1996. The new, revised edition
of Catherine Barnard’s book (1999) is at the time of writing still in press. The only
nearly up to date book on European Employment Law, written in English and available
from the beginning of the research, was the 1998 edition of Blanpain’s and Engels’
“European Labour Law”. The 1999 revised edition of this book was again not available
at the time of writing, as well as Ellis’ “EC Sex Equality Law” (1998). Finally, the most
important deficiency of this review is deemed to be the impossibility to read P. Davies’
article (1997) ‘Posted Workers: Single Market or Protection of National Labour Law
Systems?’ (in Common Market Law Review 34, pp. 571-602).
Similarly, there was a very limited quantity of up to date academic research on
the topic, since only one academic year lies between the opt-in and the writing of this
study. All the available resources in the libraries of the four Universities of Greater
Manchester (University of Manchester, UMIST, Manchester Metropolitan University
and University of Salford) have been reviewed, but none of them refers extensively to
the Directives examined herein.

Literature Review: The Pending Directives
53
Nonetheless, we should mention once again the Dissertation submitted to the
Law School of the University of Manchester by J. Fairhurst on May 1997 for the degree
of MPhil in Law, with title “Enforcement of EC law in the UK with special reference to
employment-related Community legislation”. The work of J. Fairhurst is concerned
more with the general issues surrounding the implementation of EC Law, than
Employment Law itself. The ‘employment-related Community legislation’ examined
there are the Directives on European Works Councils and the Acquired rights Directive,
and there is a reference to the consequence of the failure of the UK government to
implement the Working Time Directive (before 1997). Since there is no overlap
between the Directives examined in the study of Fairhurst and the present, we could
argue that the two studies together cover almost all major issues concerning the
implementation of recent EC Employment Law in the UK, the only exception being the
Working Time Directive, as it was finally implemented in 1998.
B. EXISTING ANALYSES REVIEWED
The following paragraphs do not include all the sources reviewed but only the
most important, since information was sought in numerous other resources (books in
which it was thought as possible relevant information to be included, several articles in
journals and other periodicals, etc.). The common characteristic in all the resources not
cited below was either the lack of any information at all, or the existence of uncritical
reviews of the legislation. As an example, IRSET refers to most or all of the Directives
in several editions (e.g. 671, 678, 679) but there are no more than three references in our
analysis, since the purpose of those presentations was more to inform than to examine
closely.
B.1 An Overview

Chapter 2
54
B.1.a Catherine Barnard (1996): EC Employment Law
The book was written in 1996 and, apparently, is out of date for most of the
issues concerned. Hence, in terms of our legal analysis, its content was valuable mainly
for covering the background of the Directives and general issues concerning EC Labour
Law, primarily the subject of equality between the sexes. However, there was enough
material valuable for our assessment over the impact of the regulations.
B.1.b Catherine Barnard and Tamara Hervey (1998): European Union Employment
and Social Policy Survey 1996 and 1997
This article contains a review of the developments in the fields of Employment
and Social Law during 1996 and 1997, including a critical review over the Treaty of
Amsterdam itself, from the scope of Employment and Social law. The issues of our
topic discussed in the article are the Agreements on parental leave and part-time work,
and the Directive on the posting of workers. The important points for our legal analysis
were again few.
B.1.c Brian Bercusson (1996) European Labour Law
What was said for Barnard’s book applies also for Bercusson’s book: there was
not much – and in some issues, as parental leave, not at all – information useful for the
legal analysis of the Directives, and most of the information was valuable only for
covering the background of the Directives or more general issues. The only exception is
the detailed legal analysis over the proposals of the Directive on the posting of workers,
where most of the concerns expressed were applicable also to the Directive’s provisions
(pp. 397-412). However, Bercusson is very critical in his presentation of the draft
proposals, something that was proved valuable for our impact assessment.

55
B.1.d Roger Blanpain and Chris Engels (1998): European Labour Law - and – Roger
Blanpain and Ioannis Koukiadis (1993): Community Law of Employment: before and
after Maastricht
These books are cited together because they are in fact two different versions of
the same book: the former is Blanpain’s and Engel’s book in English, while the latter is
its Greek version. The reason why they were both reviewed is because the Greek
version has been adjusted to the Greek legal context by Professor Ioannis Koukiadis,
and was thus helpful in providing material for comparison between the viewpoint of the
UK and that of another Member State. However, as the Greek version was published in
1993, there was no information at all about the Directives of our topic.
Surprisingly, the 1998 edition of the English version was even less useful for our
legal analysis. The reason is that, although the book is up to date and includes all the
Directives (apart, of course, from the latest one on fixed-term work), the presentation is
a plain reproduction of their text. Not only was the presentation uncritical, it was also
misleading in several points, since remarks regarding the previous legal regime have not
been removed or even modified (i.e. the book, although ‘up to date’, is not actually
‘updated’). As an example, the section referred on the burden of proof in cases of
discrimination based on sex (p. 285) starts with a paragraph stating that “regarding
proof of discrimination, it is business as usual: the appellant must prove his or her
point” (emphasis added), and continues with the presentation of the issue as it was ruled
before the adoption of the Directive. The reader is only informed that it is not any more
‘business as usual’ after proceeding to the next paragraph, which, as stated, reproduces
uncritically the text of the Directive. Similar points are very common also in the
presentation of the general issues regarding Community law, where again all the aspects
regarding the Treaty of Amsterdam are cited in one place without any modification of
the rest of the text.

Chapter 2
56
B.1.e Mark Jeffrey (1998): Not Really Going to Work? Of the Directive on Part-time
Work, ‘Atypical Work’ and Attempts to Regulate it
This article by Mark Jeffrey was the most influential and, thus, the most valuable
reading of this study, not only for the issues it covers, but also for the rest of our legal
analysis. What makes it so important is the pattern of legal analysis that Jeffrey
employs, which became adopted throughout our study: a word by word examination of
the provisions, aiming to find potential loopholes, derogations and limitations. The
findings are then juxtaposed with the stated objectives of the Directive, aiming to
estimate its overall contribution in resolving the issues it touches. Our legal analysis of
the Directive on part-time work relies heavily on the article.
B.2. Burden of Proof in Cases of Discrimination Based on Sex
More specifically, regarding the burden of proof, in pages 186-188, Barnard
cites and analyses the rulings on Enderby and Danfoss, and indicates their link with
certain provisions of the Directive’s last proposal. Also, in the (supplemental) update to
chapter 4 (pp. 503-5), she cites the ruling on Dansk Industry and refers to the failure of
the Belgian Presidency in terms of the proposal’s adoption by the Council, as well as
the latest (to date) plans of the Commission.
B.3 Parental Leave
Again in Barnard, issues related to the Directive on parental leave are covered
initially in page 110: the author gives some information of the entitlement as mandatory
in other Member States and refers generally to the late proposal of the Commission and
the UK’s blockage. However, both the Directive and the Agreement, as finally adopted,
are commented in the ‘chapter update’ of pages 513-520. The presentation is more a

57
reproduction of the context of the Agreement than a critical review, thus it was again
not valuable for our analysis. Also, the author provides some comparative data about the
entitlement in the Member States.
The presentation of the subject in Barnard and Hervey is very concise and thus
indifferent for our legal analysis. However, some concerns over the implementation of
the Agreement have been taken under consideration in chapter 7.
B.4 Atypical Work
Regarding atypical work, Barnard provides firstly some statistical data in terms
of atypical workers in the EU, and then comments on the proposals of 1990, as well as
the adopted in 1991 Directive on health and safety. Again, there is nothing important so
far for the needs of our legal analysis, the only exception being the contribution in the
ascertaining of the fact that there is a great distance between those proposals and the
Framework Agreement. In the chapter on equal pay, the author cites the ruling on
Jenkins and Rinner Kuhn, the results of Wilbrink in terms of the principle of pro rata
temporis, the aspects of Enderby concerning the legislative sources of discrimination, as
well as Danfoss. All of the remarks made on these cases were taken into account in our
scenario analysis, under the chapter on impact assessment (chapter 7). Also, the
presentation of the British government’s arguments against the proposals (pages 340-
341) made possible the confrontation of the assessment made by the Conservative to the
assessment made by the Labour administration, which is included in the same chapter.
Some more statistical evidence, together with opinions on the impact if the proposals,
which are included in the update of pages 541-543, which are also considered in our
assessment of the regulations’ impact.
In Barnard and Hervey, the review of the Agreement on part-time work is again
concise and uncritical, but there is an extensive presentation of case law developments
on the issue under the previous status. The judgements cited are those on the cases of
Lewark, Frees and Speckmann, Boetel, Helmig and others, Gerster, Kording, and Hill

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