Retained EU Law
Alan Kitto
At the end of last week the UK Government published the Retained EU Law (Revocation and Reform) Bill; it’s not the snappiest title for a Government Bill but it could be the most significant piece of legislation we’ve seen in recent memory.
It has the effect of repealing any retained EU law, that is to say any legislation (or statutory instruments) enacted in the UK to comply with EU law, on 31st December 2023.
The most significant employment laws that could disappear are:
TUPE Regulations, which provide protection for employees and workers where parts of a business are sold or outsourced.
The Working Time Regulations, which specify maximum working hours, minimum rest breaks and paid holidays.
The Part-Time and Fixed-Term Worker Regulations, which protect these groups from unfair treatment
The Agency Worker Regulations, which afford certain rights to Agency Workers after twelve weeks.
The Bill gives the Government a number of options:
To do nothing, in which the above Regulations will be repealed on 31st December 2023.
To delay the repeal date for some or all of the Regulations, albeit it until no later than 23rd June 2026 (which is ten years from the Brexit referendum).
To restate some or all of the Regulations as they are currently written.
To restate some or all of the Regulations in an amended form.
It’s important to note that the Bill may not pass through parliament or may pass in an amended, perhaps in a watered-down form.
If the Bill does pass in its current form, what changes are we likely to see?
TUPE exists to protect employees where parts of a business are sold or outsourced and it’s hard to imagine that removing this legislation would be popular. That said, some aspects of the Regulations are clunky, in particular the rules on consultation ahead of a transfer and the inability to harmonise terms of employment post-transfer.
The Government could change the consultation rules to be in keeping with redundancy consultation rules, such that collective consultation is only needed where twenty or more employees are affected. Another change may to to allow employment terms to be harmonised subject to existing rules for amending employees’ terms.
It’s equally hard to imagine the Government allowing legislation that affords minimum rest periods and paid holidays to just disappear but we could well see the end of the maximum 48 hour average working week, something that’s rarely enforced anyway. One change we might see though is that holidays will be paid as basic pay, rather than normal pay, to include provision for overtime, commission, bonus payments etc.
The Agency Worker Regulations are universally unpopular, disliked equally by employers, trade unions, agencies and the agency workers. I suspect this could be the one piece of legislation that could disappear.
The Bill has one more effect, it removes the supremacy of legal precedents set by European Courts. From the beginning of 2024, legal precedents in the UK will revert to the decision made in the highest Courts of the UK.
One significant such decision is that relating to what employees are entitled to be paid whilst on holiday. European case law has determined that the first four weeks of an employees holiday must be paid at their normal salary, that is what they would have otherwise have expected to earn based on an average of the 52 weeks leading up to the holiday.
Employers could well be able to pay basic salary for all holidays and not just those in excess of four weeks.
All of the above is just our thoughts on what may happen; the Government could easily just reinstate the legislation as it stands, or allow all of the legislation to repeal. The Bill may not even pass in this Government and it’s not beyond the realms of possibility that we see a general election and a possible change of Government before the end of 2023, nothing is beyond the realms of possibility.
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