Nathan May is a Solicitor at specialist employment law firm, Collingwood Legal. Nathan considers the implications of the Government's recent decision to scrap the "sunset clause" of the Retained EU Law (Revocation and Repeal) Bill.
The Retained EU Law (Revocation and Repeal) Bill (“the Bill) promised to “completely overhaul” the EU laws which remain part of UK legislation. The main conduit for this was the “sunset clause” which would have resulted in numerous laws expiring at the end of the year. The Government has now dropped this provision from the Bill, so what does this mean for employers now?
What has changed?
The Bill had promised that the majority of laws which derive from EU law would expire on 31 December 2023 unless they were otherwise preserved. In essence, unless the Government were to take positive action in Parliament to keep or restate the law in question, it would cease to be law. The “sunset clause” was the subject of criticism from many quarters as it may have produced legal uncertainty as to which laws remained and which did not.
Seemingly in the face of this criticism, the Government has reversed its position and has amended the Bill so that any EU derived direct or subordinate legislation to be revoked is to be explicitly stated in a schedule to the Bill. If it is not in this schedule, then the law will remain on the statute books.
The immediate impact of this change is that employers should have greater clarity as to which laws will no longer be applicable at the end of this year.
What should employers be aware of now?
The Bill is currently in the process of “parliamentary ping pong” as the two houses of Parliament cannot agree on the exact wording of the Bill. The House of Lords proposed substantial amendments to the Bill which would have required further parliamentary scrutiny of any legislation to be revoked and requiring the Government to identify aspects of directly effective rights and obligations, such as those from EU Treaties, which it intends to repeal before this can take effect. This is particularly important for rights such as those under Article 157 which has been used in equal pay cases. The House of Commons has rejected these amendments and it appears unlikely that they will feature in the final version of the Bill.
In addition, while it is now necessary for the Government to publish the laws it wishes to repeal, the power under the Bill for the Government to restate, revoke and replace existing regulations remain in the Bill. Therefore, the regulations which remain on the statute books may be subject to change. The Government has already indicated that it wants to amend the Working Time Regulations 1998 so that normal and additional leave are one single entitlement and to allow “rolled up” holiday pay. The Government has also suggested that TUPE 2006 will be reformed so that there is no obligation to consult in businesses with fewer than 50 employees and where fewer than 10 employees are affected. We await to see whether the Government has any further regulations which it wishes to amend.
What happens next?
It is likely that there will be further amendments to the Bill before it is passed, not least because it appears that the House of Commons, where the Government has a majority, and the House of Lords disagree on how EU derived law should be removed from the statute book.
The current list of laws to be repealed does not include any significant pieces of employment law, but this is subject to change, and it is hoped that we get further indication from the Government regarding the laws they wish to repeal or amend.
Collingwood Legal is a specialist employment law firm and we provide bespoke training and advice to organisations on all areas of employment law.
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