For years, a blanket of uncertainty has been cast over HR and employment law as Brexit’s impact on the world of work in England, Scotland, and Wales has been unclear.
Last September, the government announced that by the end of 2023, all EU-derived laws were to expire unless positive action was taken to either retain or amend them, which instigated ambiguity as to what changes would affect businesses. But now the goalposts have changed again.
It was announced this week that the current position of the Retained EU Law (Revocation and Reform) Bill will be reversed, so that instead of sunsetting all EU-derived laws on 31 December 2023 (unless otherwise retained), the default position will be to keep all EU-derived laws as they are, unless the government expressly list laws which will be reviewed, and reformed or revoked.
Whilst this means thousands of pieces of legislation that were once at risk of being removed will now stay in place, the Government has released a full list of all the laws that they intend to remove at the end of this year.
Kate Palmer, HR Advisory & Consultancy Director at Peninsula, gives an overview of the changes we might see within the next year.
“It seems as though many of the changes that were set to come into effect off the back of Brexit over time are falling away. However, areas of legislation that have already been identified as subject to reform are the Working Time Regulations and TUPE laws.
“Included in the proposed changes to the Working Time Regulations 1998 are plans to allow rolled-up holiday pay (which was previously deemed unlawful) and to create one pot of statutory holiday entitlement (rather than having it split into 4 weeks’ leave, as per EU-legislation, plus 1.6 weeks’ leave, as per domestic legislation).
“Both changes will likely be favoured by employers, as it will enable them to pay holiday pay at the same time as normal wages, not at the time holiday is taken, which is often easier for those who utilise zero-hours and ad-hoc contract options.
“With regards to TUPE (Transfer of Undertakings (Protection of Employment)) regulations, removing the requirement for businesses with less than 50 people to consult with representatives about a transfer affecting less than 10 employees, may be viewed differently by different employers. Some will be happy that they don’t have to facilitate an election process, but others may be concerned about the additional time and process of consulting with each affected employee individually. It’s also unclear how this proposed law change might impact existing agreements with trade unions, as employers will likely still be expected to follow them.
“Additionally, the government will limit the length of non-compete clauses to three months in a proposed new law. This is set to benefit employees when looking for other employment opportunities, as well as make the recruitment process easier for employers wanting to take on new talent. However, it’s unclear whether existing non-compete clauses which are longer than three months will become void entirely, or if they will simply expire early. Similarly, any legal action for breaching a restrictive covenant may have to be stopped when the law passes. As such, employers may want to consider whether they want to pursue any current action or let it go to avoid wasting time, money and resources proceeding with a claim that will later be removed.
“Essentially, though no main employment laws are being removed as it stands, employers will still need to ensure that they follow the correct processes as set out by these new proposals when they come into effect, and be sure to keep an eye out for further announcements over the coming months.”