The introduction of the Retained EU Law (Revocation and Reform) Bill has not received huge coverage in the wake of so much political upheaval recently but will ‘sunset’ (revoke) any piece of retained EU Law by 31st December 2023 unless specific legislation is introduced to retain it.
There is provision to extend the ‘sunset’ date to 23rd June 2026 in certain cases (the significance of this date being it marks the 10th anniversary of the Brexit referendum). There is also the power to modify, restate, replace and update retained EU Law. Notably, this can be done without parliamentary scrutiny. However, a restatement could present an opportunity to simplify legislation in areas which are calling out for reform.
Sarah Begley, Solicitor at The Wilkes Partnership comments: “This has potentially wide-reaching ramifications from an employment law perspective. At present, we have very little knowledge of the Government’s intentions and the predictions summarised in this article are merely a best guess at this stage.”
Possible Changes in the Retained EU Law (Revocation and Reform) Bill
Below is a summary of some of the areas of employment law which could see changes:-
- TUPE (Transfer of Undertakings (Protection of Employment) Regulations 2006: It is possible that the Information and Consultation obligations could be relaxed and it could perhaps be a chance to bring the obligations more in line with collective redundancy and only apply to 20 or more affected employees. The current ban on post-transfer harmonisation could be overturned although this would need to be carefully carved out to ensure rogue employers do not see this as an opportunity to cut pay for those employees who transfer across.
- Working Time Regulations (WTR): This may consist of the 48-hour working week ruling being abolished. As it stands, employees cannot legally work more than 48 hours each week averaged over a 17-week period (although an employee can choose to opt out if they wish to work more and this is subject to some exceptions, for example, airline staff). In practice, this is largely viewed as red tape and ignored. As such it is unlikely to be restated.
- It is likely that the WTR will be renewed but heavily amended. The entitlement to 5.6 weeks’ holiday and rest breaks is unlikely to change as it is fairly embedded and the UK has more generous entitlements in this respect than much of Europe. However, the entitlement to carry untaken holiday over could cease as could the calculation of holiday (to include commission, overtime etc.). This may well revert back to an entitlement to basic pay only. However, it is important to note that this bill will have no bearing on the recent decision in Harpur Trust vs Brazel in respect of calculating holiday for part-year workers. This ruling confirmed that holiday pay for permanent staff who only work part of the year, such as term time workers, should get a full 5.6 weeks’ annual leave a year.
- Agency Worker Regulations: These have been unpopular and are likely to go.
- Discrimination: It is possible that the level of compensation may change and could be subject to a cap.
- Family Friendly rights: Again, the UK exceeds the EU protection (for example, shared parental leave) and therefore it is unlikely that there will be an appetite to alter much in this regard.
- GDPR: Although not strictly employment legislation, it does sit alongside employment law protection. This could be abolished or heavily amended.
One central flaw with the Retained EU Law (Revocation and Reform) Bill flagged up by the ELA (Employment Lawyers Association) is that it sets a long stop to turn off all EU-derived worker rights without first putting in place replacement protection. This is particularly the case in light of the turning off of the 3 key principles of EU law by the end of 2023; direct effect, the supremacy of EU law and the general principles of EU law. This has the potential to create widespread uncertainty. ELA strongly recommends an audit of employment law and employment cases before the bill is considered further.
Sarah concludes: “As with any changes to employment rights and law, this will mean new policies, changes to existing policies and training required for new procedures. It is possible that there could be a shift in balance more towards the protection of businesses rather than individual employees. To what extent, time will tell as no doubt this will be the subject of much debate.”
