Plugging the Gaps? Pregnancy, Worker Status, and EU Migrants' Social Rights since St Prix

The paper was concerned with the labour rights, and wider social rights, of EU nationals working and residing in other EU States - and shortcomings in equal treatment aspects of the EU law 'free movement' regime. The paper put forward several arguments. First, that in the context of high unemployment, wage stagnation, and deregulation agendas increasingly pervading many areas of employment law – the proliferation of ‘zero hours contracts’ and failure to implement EU agency workers’ legislation being just some examples - shortcomings in the implementation of equal treatment requirements at the State level has demonstrably been hitting EU migrant workers hard. Europe’s values and expectations in this key area of the EU project are not being met, and certainly not in the way envisaged when free movement principles were formulated.

Second, the problems being seen with transposition and implementation are not just confined to the UK and other ‘bad' member states. Some of the difficulties are, indeed, rooted in the EU legislation itself, and this includes some important deficits that originate in Dir 2004/38 itself. The needs for lacuna-filling in relation to the retention of 'worker' status - a key gateway to social rights - was seen in the recent UK Supreme Court case of St Prix v Secretary of State for Work and Pensions. In practice, problems arise from a combination of deficits in the EU Law regime itself as well as at Member State level.

After an examination of St Prix as a case study that highlights some of these issues, consideration was given to the Bachelet Report 2011 (International Labour Organisation), and the call in that report for States to put in place, and maintain, a floor of social protection (‘Social Protection Floor for a Fair and Inclusive Globalization’, Geneva: ILO, 2011). Clearly the aim of extending labour standards and social rights to migrant workers (including the Decent Work agenda) is not being fully heeded in Europe, as is readily apparent from the way the free movement system is operating in cases like St Prix. This is unfortunate given the sizeable and growing contribution being made by EU nationals working in European host States' labour markets.