Employment law specialists fear that the government is opening up a route to removing employees’ rights, working time rules and TUPE regulations, as ministers yesterday introduced the Retained EU Law Bill to parliament.
If the new Bill passes into law the government would have to take positive action to keep current rights and protections, a situation that could lead to an increased number of legal battles as workers’ seek protections on a case-by-case basis.
The Bill, once enacted, could lead to the scrapping of TUPE regulations, paid annual holiday rules, the 48-hour working week, agency worker regulations and part-time and fixed-term worker rules, and, according to employment law specialists, could pit the UK against the EU, leading to the latter applying some form of sanctions.
Retained EU Law was created at the end of the Brexit transition period and consists of EU-derived legislation that was preserved in the UK’s domestic legal framework by the European Union (Withdrawal) Act 2018.
The government has now decided that, according to its announcement: “The time is now right to end the special status of retained EU Law in the UK statute book on 31st December 2023. The Bill will abolish this special status and will enable the government, via parliament to amend more easily, repeal and replace retained EU law.”
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It is currently unknown which regulations the government will look to jettison, other than the working time directive.
In January 2021, then business secretary Kwasi Kwarteng, admitted that the government would be looking at workers’ rights gained through EU law but added: “We are absolutely looking at safeguarding employment rights. I know there’s been stories in the newspapers that there’s going to be some sort of bonfire of rights. This could not be further from the truth.”
He said the government planned to keep “a really good high standard for workers in high employment and a high-wage economy” and that the idea that the government was trying to “whittle down” standards was “not at all plausible or true.”
Employment law commentators fear that Kwarteng, now he’s chancellor, could be about to make a u-turn on those previous statements.
According to Caspar Glyn KC, the Bill will affect “Article 157 of the Treaty and the principle of normal pay for holiday pay. The former is what tens of thousands of women currently use to claim equal pay from supermarkets and the latter is a right that all workers and employed people enjoy.”
He added: “No one knows what will be retained by deliberate regulation and what will go on the bonfire. However, the European Trade and Cooperation Agreement provides that if changes to UK employment law have a material effect on trade or investment then, following defined procedures, measures can be taken by the EU to rebalance their effect (tariffs etc).”
Glyn acknowledged these legal changes could bring reduced cost to business and could attract inward investment into the UK. However, if they made investment into the UK more attractive than the EU, “then it would raise the spectre of enforcement measures under the Trade and Cooperation Agreement”.
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