You can go your own way
I see Keir Starmer is off to meet Ursula von der Leyen in Brussels during the coming week. It is good that they are talking. Will much come of it? I doubt it. Sure, there will be some announcements about future meetings, maybe working groups, and how both sides hope to “reset” things. Anything of substance? Probably not. But then, as my friend David Henig says, I am a cynic about such things. And I am always open to being surprised.
For now, I think the UK’s new approach to Brussels is what might best be described as the “Oliver Strategy”. “Please sir, can we have some of that cake you refused to give the nasty Tories”.
While Keir and Ursula get together in Brussels, the EU and the UK continue to drift apart. As readers of these Scribblings will know, my “day job” is consulting on European employee and labour relations. In this field, the gap between the EU and the UK is getting wider day by day. The gap will soon widen to such an extent that it will not be surprising if questions start getting asked about the “level playing field provisions “ in the Trade and Cooperation Agreement. Admittedly, it would be difficult to prove that the field is no longer level and is adversely impacting trade but, I have no doubt, that the day will come.
Employee voice
This line of thought was prompted by a LinkedIn comment by a friend, Debbie Sanders. Debbie raises the issue of employee voice in the workplace as trade union membership in the UK continues to decline. In the private sector, it is about 12%. It is not much better than that elsewhere in Europe. Unions believe that there is some magic legislative bullet that will turn their fortunes around. I doubt it.
Debbie makes the point that, whether unions are present or not, employee voice in the workplace, particularly collective voice, will still be important. I agree. And smart employers know this. They will be looking at ways to hear this voice without necessarily wanting to hear it through antagonistic and confrontational channels.
The question Debbie asks in her post is how is this to be done? In the absence of unions, what alternative is there?
Countries in “Western mainland Europe”, though not in Central and Eastern Europe, have legally mandated workplace mechanisms for employee voice, such as works councils, even where unions are non-existent.
Ireland is closer to the UK than anywhere else. But this could be about to change for reasons I’ll come to. And yes, I know that in Scandinavia it is union-based.
Social media has come to play a significant role in highlighting employee grievances. The MeToo movement comes to mind. But social media protests tend to be emotionally driven, ad-hoc, leaderless and lack staying power. A TicTok post is not an organising strategy.
In multiple businesses, employers are using HR analytics to identify and fix workplace issues that are causing employees concern. This will only get more prevalent and sophisticated with the growth of analytic tools with embedded AI. Identify and fix it before it becomes a problem.
More detailed comments about social media and HR analytics are for another day. What I want to focus on in this scribbling is the growing divergence between the EU and the UK, which is coming down the track.
I never liked you anyway
Let’s start with a little history. It is no secret that the UK was never particularly keen on EU labour and employment laws, and that includes the Labour Party as much as the Tories.
Back in the 1970s, the Labour government opposed EU plans for European Works Councils and worker codetermination, because the then very powerful UK unions worried that they would undermine them in the workplace. The unions wanted only one channel of employee influence in the workplace. Themselves. Shortsighted. Look where that ended.
It is well documented that Margaret Thatcher, who had helped Jacques Delore create the Single Market, took against Delors after he spoke to the TUC in 1988 about the need for a Social Europe. She responded with her Bruges speech.
The UK then actively opposed the Working Time Directive, (WTD) which limits the working week to 48 hours and gives workers a right to four weeks’ holidays, even though the UK had secured the “48-hour opt-out”. The UK took its case against the WTD to the European Court, which dismissed all of its complaints.
The Thatcher/Major governments also tried to argue that UK employers did not have to consult, as required by EU law, over collective redundancies or the transfer of undertakings as, in the absence of recognised trade unions. and it was up to the employer to decide if they wanted to recognise a trade union, there were no employees’ representatives in the workplace with whom to consult. The European Court ruled that in such cases, legislation had to provide for the election of representatives to be consulted over the proposed redundancies or transfer.
Interestingly, this precedent ruling could be about to play an important role in the implementation of a new raft of European laws that provide for employee information, consultation, and engagement.
While the years of the Blair government saw little proposed in Europe on labour and employment laws, Labour was obstructive on whatever was put forward, such as the Framework Directive on Information and Consultation, or the Agency Workers’ Directive, which it fought tooth and nail. As the former Labour Europe minister, Denis McShane has written, when it came to labour and employment law, his standing instruction was to go to Brussels, find out what they were up to, a put a stop to it.
Left over laws
EU labour laws which were on the UK statute book on the day the UK left the EU are still there today. They have not been revoked. To date, UK workers have not lost the rights they were given by EU laws.
There is one exception to this. UK-based employers are no longer covered by the European Works Council Directive when it comes to their UK employees, though they are covered for employees within the EU. Also, UK employees have lost the legal right to be represented on EWCs, though they can remain on them by agreement.
There is always a comic side to everything. As the UK was preparing for Brexit back in the glory days when Boris Johnson was Prime Minister, legislation was rushed through which amended the Transnational Information and Consultation of Employees Regulations (TICER) which transposed the EWC Directive into UK law. The amendments were badly written and were open to the interpretation that certain UK-headquartered undertakings might have to run two EWCs, one under EU law and the other under UK law.
Well, that has turned out to be the case. As a result of court interpretations of the revised TICER certain UK companies do have to run parallel EWCs, one UK-based, the other under EU law. How many undertakings are caught by these rulings? Just two. Yes 2. One is easyJet, the other is the British Council. Both have to run two EWCs one under UK law, the other under EU law. easyJet runs its EU EWC out of Germany, and in something that will bring a wry smile to many a lip, the British Council, that promotor of British culture, out of Ireland.
As it was preparing to leave office, the Tory government moved to put an end to this anomaly. Will Labour follow through? Can any sort of case be made to leave a law on the statute book that covers just two – yes 2 – companies? And one isn’t even a company. It is an agency of the British government. With a close relationship to MI6 if the truth be known. Read the novels of Graham Green or John Le Carré. Tinker, Taylor, Soldier, EWC Member.
Since you’ve been gone
It may be coincidence or not, But since the UK left the EU, a significant number of new laws that provide for “employee voice” through information and consultation procedures have been adopted. They include:
The Adequate Minimum Wage Directive, which also includes provisions on the promotion of collective bargaining.
The Pay Transparency Directive, which obliges employers to engage with employees’ representatives to discuss how to close gender pay gaps of more than 5%.
The Corporate Sustainability Report Directive (CSRD) and the Corporate Sustainability Due Diligence Directive (CSDDD) both of which oblige employers to engage with employees’ representatives not only in their own operations but in their supply chains over a range of issues.
The Status of Platform Workers Directive with the need to engage over the use of algorithms in human resource decision making.
The AI Act which also touches on the need to inform employees and their representatives about the use of AI in the workplace. Expect a specific AI in the Workplace law to be proposed in the near future.
The EU Commission is currently working on a law on The Right to Disconnect/Remote Work. It will provide for the right to information and consultation.
None of these laws will apply to the UK though they will apply to the operations of UK undertakings in the EU.
A new engagement dynamic?
Most of these laws will mean employers will have to engage with employees’ representatives. What happens if there are no representatives? It seems to me that, in line with the European Court’s decision back in 1994 over UK redundancy and transfers consultations, national law will have to provide for their election. A parting gift from the UK to European workers.
The Irish law of July 6, 2024, transposing the CSRD does that by referencing the 2006 Employees (Provision of Information and Consultation) Act. When we consider all the other new legislation listed above, could we be about to see works councils – or employee forums if you will – springing up all over Ireland? I lean to the view that we could. The door is now very firmly open.
Yes, we have had elected ad-hoc representatives for collective redundancies consultations over the years. But these disappear once the consultation is finished. Consultations on CSRD, pay transparency, and platform workers, to name but three will not be once-off, but ongoing.
I pick Ireland because it is my home country and the one I am most familiar with. But the same dynamic could play out in Central and Eastern European countries which are “light” on union representation and have no works council tradition.
Now, I have been around long enough to know that things don’t always work out the way you think they should. But it does seem to me that a “direction of travel” has been set within the EU over future employee information and consultation requirements and procedures. At the very least, the possibility for “employee voice” across a range of issues in European workplaces is in the process of being created. Whether employees take advantage of these possibilities is up to them.
Employers should also be thinking about what such potential developments could mean for their approach to employee relations.
Out of step
The new UK Labour government has its own, ambitious agenda that will deliver new employment rights. We will see the details in the coming weeks. But from what I have read, while some of the changes may make it easier for unions to win recognition and access workplaces, most of what is being considered is enhanced individual rights. There does not seem to be any parallel to the “information and consultation rights” increasingly built into EU laws.
So, to Debbie’s point. EU laws increasingly offer a path to non-union employee voice, if that is what employees want. There does not seem to be any such similar path in proposed UK laws.
Drift apart it is then.