Is Europe good for small employers?

Regrettably, since the writer is essentially pro-European, the EU has not been particularly good for small employers.

The most problematic UK employment legislation originates from the EU and its courts.

Take holidays for example. Prior to 1998 these were mostly sorted out by employers and employees. There was no legal entitlement to holidays but employers recognised they needed to provide some. Many of us received 25 days. Now holiday entitlements are so complex that often no-one is quite certain how much holiday pay an employee should receive!

By way of illustration:

  • rolled-up holiday pay is technically unlawful (but very practical)
  • commission earnings should be included in the calculation of a holiday pay-rate (but no-one is sure which types of commission to include or exactly how to calculate the amount)
  • holiday entitlements can be accrued while an employee is on long term sick (and carried over for 18 months, or for some yet to be determined time)
  • employees who are sick while on holiday can take up to four weeks at another time

These complications arise in part from the original European Directive which had to be enshrined in UK Regulations. This type of legislation (Regulations) is never subjected to the rigour of debate in Parliament. Other complications arise from the decisions of European Judges – leaving the UK Government and employers the task of mitigating the consequences.

Acquired rights, on transfer of undertakings between businesses, originate from another European Directive and have also been converted into Regulations (TUPE). There are so many fine, often seemingly conflicting aspects, to these Regulations that the very acronym can strike fear into the uninitiated . These Regulations too have complications arising from European cases. The Daddy’s Dancehall case essentially prohibits a worker from accepting “a deal” if it arises from a business transfer. The Frau Schmidt case means the Regulations apply even if only one person is involved. These points may be oversimplified but they show how decisions taken in countries other than the UK affect UK employers.

The definition of “working time” has been surrendered to the European Courts for them to determine whether an employee on call, allowed to sleep but required to be on the premises, was “working”.

To end on a more positive note, Health and Safety legislation has been strengthened by Europe. Although we had our own Health and Safety at Work Act. the six-pack of Regulations originating from European requirements in 1992 made some major, positive, changes. Whether Health and Safety would be where it is today without accountability to Europe must be open to debate. But undoubtedly many thousands of people would have been maimed or killed in the last two decades without a more stringent approach to safety than prevailed in earlier decades.

Perhaps it should not determine how we vote but the employment relationship would be simpler without the EU.

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