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With its incorporation in the newly agreed EU constitution the Charter of Fundamental Rights has finally found its home amongst basic European legislation. However, despite much analysis since its adoption three years ago (see our previous issues), it is still not clear exactly what its effect on UK labour law will be. Opinions differ from the 'striker's charter' of the anti-Europeans to 'all the effect of the Beano' attributed to a member of the British government. We try to nail down the truth below.
The eventual deal on the new European Union constitution was greeted by trade unions with a 'two steps forward, one step back' message. While there was disappointment on the influence of the UK government's 'red lines' and attempts to water it down, features such as the incorporation of the Charter of Fundamental Rights, the value placed on gender equality, the legal basis for public services and the confirmation of the EU's interest in social matters have endeared the constitution to the ETUC. 'The Heads of Government and State agreed to a lower common denominator than the Convention. Yet, compared to the Nice Treaty, the new European Constitution is nevertheless a big step forward' say the union confederation.
The British government, having ensured that the original Charter had only 'declaratory' effect, wanted to exclude it from the constitution. They were worried by the social provisions such as the right to strike, the right to safe and dignified working conditions and the right to social and housing assistance. Whilst they could not exclude it, they felt that certain 'technical explanations' plus the fact that it only applies to EU law will mean that there will be no great changes in domestic practice in areas such as industrial relations. However it is often not clear where UK law ends and EU law begins. The fact that the Charter will be 'judiciable' at the European Court of Justice suggests that, at least, cases which unions bring now to the court will receive stronger backing if the Charter can be enlisted in their favour,
A case from the UK has highlighted grey areas of law surrounding the taking of maternity leave. A Ms. Alabaster had claimed her maternity leave from Woolwich plc. According to national law the earnings related component of her Statutory Maternity Pay (SMP) was calculated based on her wages in the 8 week period ending 15 weeks before the expected birth. After that time the employer granted a pay increase which was not backdated. Ms. Alabaster contended that this increase should have been included in her SMP. The ECJ agreed: in its judgement it stated that any pay rise awarded up to the end of maternity leave must be taken into account.
María Paz Merino Gómez was employed in a workshop in Spain when she claimed maternity leave. Returning to work afterwards she applied for annual leave but was told by her employer that, because the fixed works holiday had occurred during her absence she would be refused. The court found that maternity leave had a different purpose from an annual holiday as it was designed to 'protect a woman's physical condition' and to protect the special relationship between a woman and her child'. This must not result in less favourable treatment such as inability to take other leave.
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