This is a cross-posted article, originally written on the Pure Employment Law Website and has now been posted here. Please note the date on which this article was posted originally and that any information within may have changed.
29 September 2022
With all the publicity surrounding the death of the late Queen, a potentially massively important piece of employment legislation has been proposed which seems to have largely gone unnoticed. This is the Retained EU Law (Revocation and Reform) Bill. Once passed into law, the effect of this piece of legislation will be that all retained pieces of EU law will automatically expire on 31 December 2023, unless specific legislation is brought in to retain them.
The Government can extend this deadline to give them further time to decide what to do with a particular piece of legislation, but only up until 23 June 2026, which is the 10 year anniversary of the Brexit referendum.
The EU has had a very significant influence on employment law in the UK for the best part of half a century. UK employment law which derives from Europe includes:
- The Working Time Regulations, which contains the right to paid holiday, rest breaks and limits on working hours.
- Any ‘worker’ rights (as opposed to employee rights), as the concept of a ‘worker’ derives from Europe.
- The Transfer of Undertakings Regulations (TUPE) which are designed to protect employees’ rights when their employment is transferred to another employer, such as when businesses are sold or contracts are outsourced.
- A lot of discrimination legislation, including discrimination on the grounds of religion and sexual orientation.
- Some rights for pregnant women and those on maternity leave, and other parental rights.
- Some Health and Safety legislation.
- Some protections for atypical workers, such as agency workers.
It will of course remain to be seen which pieces of legislation are retained, but there is a fear that if employment laws that derive from EU law are going to be reformed significantly, will there be enough time to draft and pass properly considered legislation in time for the end of 2023?
It is worth noting that the decisions as to which legislation is retained is not going to be taken by Parliament, but by ‘a relevant national authority’, which means ministers or the devolved authorities. In addition, a minister will be able to pass regulations to make ‘such provision as they consider appropriate in consequence of this Act’. This will give ministers an enormous amount of power to make any changes they see fit to any EU derived legislation, without the need for any approval through Parliament.
The Bill removes the principle of the ‘supremacy’ of EU law (the concept that UK legislation must be interpreted to give way to EU law where there is a conflict) from the end of 2023. Section 4 of the European Union (Withdrawal) Act 2018 will be repealed, meaning that some directly effective EU rights (including the principles of equal pay and that employees should receive normal pay for their holiday pay) will no longer be in force. However, the Bill does allow for these rights to be restated, meaning that these could be turned into a UK law. The principle that UK legislation should be interpreted in line with EU law will also be removed.
The Bill also sets out a new test to encourage the Court of Appeal or Supreme Court to exercise their power to overrule pre-Brexit case law from the European Court of Justice, which includes them considering whether circumstances have changed since those cases were decided on. The Bill also gives lower courts such as the Employment Tribunals the opportunity to ask higher courts if they are still bound by EU case law when considering points of law of ‘general public importance’. Given the volume of EU case law on important matters such as the interpretation of the Working Time Regulations, this could lead to many such questions being asked by Employment Tribunals, which will of course add to the length of time cases take to be dealt with.
The Government thinking behind the Bill appears to be to reduce costs to businesses, to attract investment and bring about economic growth. However, the EU-UK Trade and Cooperation Agreement signed on 30 December 2020 states that if changes to UK employment law have a material impact on trade or investment then measures can be taken by the EU to redress this, which could include tariffs being imposed. This will need to be taken into account when changes are being considered.
We will of course keep you updated on the effect of this Bill, which could have a huge impact on UK employment law in the future.