Helen Scott is a Senior Associate Solicitor at specialist employment law firm, Collingwood Legal. Helen considers the implications of the Retained EU Law (Revocation and Repeal) Bill on employers
The UK’s 47-year membership within the EU resulted in fundamental changes to employment law, but it is perhaps unsurprising that, following our legal withdrawal from the EU, that an assessment of these laws takes place. This “assessment” now has a legislative instrument, the Retained EU Law (Revocation and Repeal) Bill (“the Bill”) and it promises a short life span for the EU laws which remain part of UK legislation. What are the key components of the Bill?
The headline from the Bill is that the majority of laws which derive from EU law will expire (“sunset”) on 31 December 2023 unless it is otherwise preserved. Importantly, this covers Regulations (laws made by Ministers) and EU Regulations which emanated from the EU directly, as well as the content of the various Treaties which governed the UK’s membership of the EU (including Article 157 which has been used in various equal pay cases).
The Bill also removes the supremacy of EU law and provides courts with the authority to depart from any retained EU case law, particularly if it restricts the development of domestic law.
However, the Bill also gives Ministers significant power over the form that these laws can take if they are retained. Section 15 of the Bill allows Ministers to restate an area of retained EU law, but to use concepts or words which are different from that of the original piece of legislation and to make changes to, for example, improve the clarity or accessibility of the law in question. Ministers can also revoke and replace any piece of retained EU law with “such a provision [it] considers appropriate and to achieve the same or similar objectives”. As has been noted in parliamentary debates on the Bill, the impact of these provisions is that parliamentary oversight of potential significant changes to legislation would be minimal.
What laws could go?
As mentioned in the Explanatory Notes of the Bill, the Government anticipates reforms to 2,400 pieces of retained EU law. Most notably, regarding employment law, this could include:
The Working Time Regulations 1998 (including the right to rest breaks and annual leave);
The Agency Workers Regulations 2010;
The Part – time Workers (Prevention of Less Favourable Treatment) Regulations 2000;
Fixed – term Employees (Prevention of Less Favourable Treatment) Regulations 2002;
Transfer of Undertakings (Protection of Employment) Regulations 2006 (otherwise known as TUPE).
What can employers expect until 31 December 2023?
While it is unlikely that any government would allow the right to annual leave to “sunset”, it is not fanciful to suggest that the Government may wish to make incremental changes to other areas, such as TUPE. However, we await the Government’s position on any specific piece of legislation.
It also appears unlikely that we are going to see a stripping down of workers’ rights, particularly as this could lead to sanctions under the UK – EU Trade and Co-operation Agreement. However, the Bill is clearly not looking to strengthen any rights either, as Section 15 expressly prevents any revocation or replacement of retained law increasing “regulatory burden”.
The Bill was introduced under Liz Truss’ Government. While Rishi Sunak is unlikely to completely abandon the aims of this Bill, it will be interesting to see whether his government seek to provide greater certainty as to the process for deciding which laws are retained or whether they would seek to extend the deadline for laws to be retained or repealed until 2026.