FSB sounds alarm over EU Court cases

20 February 2006

The Federation of Small Businesses (FSB) has raised serious concerns about changes to key regulations on business from cases currently before judges in Europe.

The FSB has learned of at least two cases now being considered by the European Court of Justice (ECJ) where the European Commission has taken the UK Government to the Court to clarify whether current UK law complies with EU regulations.The first case is regarding the Working Time Directive and the second is on Health and Safety rules (see below).

The FSB, the UK’s largest business organisation, has called on the UK Government and MEPs to better scrutinise draft laws in future to prevent further flawed legislation and the uncertainty for business that it causes.Businesses adjust to new legislation and to alter it again soon after implementation through the courts places even further burdens on them to comply.

John Walker, National Policy Chairman for the FSB, said:

“This is a worrying development for many of our members.We hope that the Government wins these cases to protect the current system.It may not be perfect but it functions relatively well and is far better than what might result from the Commission winning these cases.

“This new tactic, legislation through the European Court, is one that causes us great concern.We are very worried that, just as our members have become used to complying with a new law, it can be altered still further.The regulatory burden is already high on small firms and this could greatly increase that burden.

“Health and Safety legislation and the issue of working time are both vital to get right.Our members take the health and safety of their workforce, the greatest asset in any business, very seriously but common sense and appropriateness are vital and are contained in the current UK law.Changes are not needed.

“We also call on the UK Government and MEPs to raise their game when drafting and approving legislation to ensure that similar threats to firms’ ability to trade do not hang over businesses in future.”

The cases are as follows:

• Case C-484/04 on breaks during and between working days. This issue relates to the Working Time Directive, specifically around breaks for workers.The Commission, prompted by UK Trades Unions, has taken the UK Government to the ECJ to change the current interpretation of the Working Time Directive in UK law.The UK Government has transposed into law the section on breaks for workers (both between and during working days) and the official guidelines advised employers that they must ensure that workers “can” take their rest but they are not required to ensure that they “do” take their rest.It is therefore up to the employee to choose when to take their breaks.The FSB argues that if the worker can take their break but does not choose to do so (for example they do not have a lunch break so they can go home early) then there is no loser and no reason to change the current regime.An example would be that this summer if a worker wanted to watch an England World Cup game that started at six o’clock in the evening, and wanted to leave work early to get home in time for kick-off, they could work through lunch to do so.Should the wording be changed this flexibility could well be lost.Action by the Unions in encouraging the Commission to bring this case could lead to their own members missing events such as this that may be important to them.A preliminary judgement will be made on March 9th.
• Case C-127/05 on Health and Safety. The current Health and Safety at Work Act (1974) upon which all UK law on the subject is based contains the phrase that employers should act to protect the health and safety of their workers “so far as is reasonably practicable”.The Commission contends that this wording does not go far enough in implementing the 1989 Health and Safety Directive.Any change to the current wording could lead to a huge impact on businesses such as firms having to put locks or even bars on their windows to ensure staff do not fall out.This despite the fact that there may be minimal risk of this ever happening.Given that small firms spend on average 28 hours per month filling in forms to prove their compliance with existing laws, further such burdens will cost more in monetary terms to comply and in time spent completing forms to prove compliance.A preliminary judgement date has yet to be set for this case.

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