The government has announced that all retained EU laws will be “sunset” on 31 December 2023, enabling the UK to create its own regulations. The Brexit Freedoms Bill eliminates the right to holiday pay, TUPE and limits on working time. All law obtained from the UK’s membership of the EU must be reviewed and either transferred into UK law or removed by the end of 2023.
So, what does this mean for UK employment law?
After Brexit, the UK’s move away from the EU was eased by the retention of applicable EU law in force in the UK on 31 December 2020, known as retained EU law. The new Retained EU law (Revocation and Reform) Bill (‘the Bill’) seeks to significantly speed up the process of removing and/or replacing these retained EU laws.
The UK is already free to remove retained EU law, but only by following certain stringent processes. Evidently, this is seen as too slow and in need of being pushed through. The Bill allows for the removal or replacement of EU law by way of regulations. This is a faster process and involves less parliamentary scrutiny. Fundamentally, the Bill includes a “sunset clause” meaning that, as at 31 December 2023, what is left of some retained EU law will cease to exist (although this can be prolonged to June 2026, if the government needs to extend the deadline in relation to specific laws).
Making new law
The Bill includes provisions that allow certain retained EU law to be retained, replaced or disregarded by new regulations. This will be based on:
- Reinstatement (having purely UK law, by turning the EU law into UK law, without the effect of EU case law, including limited power to change wording in order to resolve any uncertainty);
- Replacement (replacing the law completely with a new UK version); and
- Revocation (the removal or the current law, without a UK equivalent being put in its place).
These new powers apply to regulations such as the Working Time Regulations and EU employment law contained in Acts such as redundancy consultation requirements (such as some of the collective redundancy consultation requirements in the Trade Union & Labour Relations (Consolidation) Act 1992).
So, what can we expect?
Some rights could be intentionally retained, but deprived of findings from European Court of Justice (ECJ) case law.
New UK versions of some rights (such as Working Time) could be introduced, or these may be removed altogether. However, if a new UK Working Time law is introduced, it cannot increase the regulatory burden.
By the end of 2023, EU-derived secondary legislation (i.e. laws which are not contained in an Act) will disappear under the “sunset clause” unless deliberately retained or replaced by new law. This would impact much of the employment-related regulation, for example:
- The Working Time Regulations
- The Agency Workers Regulations
- The Part-time Workers Regulations
- The Fixed term Employees Regulations
- TUPE (but only insofar as it implements EU law. In fact, TUPE deliberately goes further than EU law in some respects)
- The Information & Consultation of Employees Regulations
- Various Health & Safety regulations
- The Maternity & Parental Leave Regulations (in respect of parental leave and potentially certain aspects of the maternity regime but only insofar as the regulations operate to implement EU law).
This means that the right to paid holiday could be lost, along with the right not to work more than 48 hours per week. Current EU law provides workers with certain basic rights, which operate as minimum standards regardless of the terms of an individual contract of employment. These rights include:
- 48 hour per week, working time: current law restricts workers from working more than 48 hours per week, unless they have signed an opt out;
- Paid Holidays: workers currently have the right to take 20 days of paid holiday per year, plus the usual 8 public holidays;
- Rest periods: for every 6 hours worked, workers are legally entitled to at least a 20 minute break.
- Specific protection of night workers: any employee working 3 or more hours between 11pm and 6am are classed as night workers. The working hours of night employees should not exceed more than 8 hours.
New regulations could see the 48-hour limit on the working week disappear and introduce new rules on rest breaks. It may also change how/if holiday is paid.
Despite these possibilities, the government does appear in general to be committed to fairness in the workplace as the Taylor Review of Modern Working Practices (the Good Work Plan) (which was done pre-Brexit) stated that the legislative framework must be reviewed to accommodate the reality of people’s working relationships. However, time is of the essence with this and with no current confirmation on the government’s position, employers are not left with much time to react to whatever is decided. We will have to wait and see what impact Brexit has on UK employment law.
However, employment law contained in Acts, are not subject to the “sunset clause”.
What happens now?
We will likely see much debate and numerous proposed amendments before the Bill is eventually passed into law. However, the end of 2023 is not too far off and will come around quickly. Accordingly, government departments will be under pressure to move swiftly in reviewing any retained EU laws that fall within their area of responsibility, to avoid running out of time and being left subject to the “sunset clause”.
It definitely seems that employment rights as we know them will see significant changes and, given that employers generally have at least 2 years to prepare for implementation, it appears that they may not have the same amount time to prepare for the laws being removed!
The reform of legislation will be substantial and concentrated. It will either see new law implemented, or existing law preserved, where this is preferred.
We will keep you updated as things progress! In the meantime, if you have any questions, reach out to us and we will be happy to help:
? hello@peachlaw.co.uk
? Connect with us on LinkedIn – Peach Law (HR & Employment Law Specialists)
? 0161 478 3800
Please note this blog is for information purposes only and does not constitute legal advice.
