The government has introduced a bill that, if passed, would end the special status given to retained EU laws in the UK. Emma Burrows discusses what this could mean for employment law.
The Retained EU Law (Revocation and Reform) Bill 2022-23 was introduced to the House of Commons on 22 September and proposes significant changes to the status and operation of retained EU law within the next 15 months.
According to the government press release there was never any intention for retained EU law “to sit on the statute book indefinitely”, and the bill is declared to be part of the government’s “commitment to put the UK statute book on a more sustainable footing”. As part of its intention to reclaim the sovereignty of Parliament, the government has stated that it “will ensure that only regulation that is fit for purpose, and suited for the UK will remain on the statute book”.
This contradicts the UK’s Trade and Cooperation Agreement which agreed that the parties would not weaken or reduce their labour or social standards below the levels in place on 31 December 2020. This applied to all fundamental rights at work, health and safety standards, fair working conditions and employment standards.
In addition, ever since the Brexit referendum, the government has said it intends to legislate separately to protect and enhance workers’ rights.
What is retained EU law?
It’s broadly EU law that has been incorporated in UK legislation. Given that the government’s retained EU law dashboard published back in June, listed over 2,400 pieces of retained EU law, it’s clear the government has its work cut out. This includes law that we deal with daily, such as TUPE and the Working Time Regulations.
The bill provides that all retained EU law contained in domestic secondary legislation (such as the Working Time Regulations) and retained direct EU legislation will be revoked on 31 December 2023 (or a later date before 23 June 2026, if agreed) unless a decision has been made to preserve it. This means that over the next few months government departments and the devolved administrations will need to decide which retained EU law can expire, and which should be incorporated into domestic law.
We therefore live in uncertain times and do not know what law will be revoked by the end of 2023.
EU law will no longer have supremacy
Currently, if there is a conflict between UK and EU law, EU law takes priority. This will stop after 31 December 2023. This will impact, for example, on how the courts look at “normal pay” (which has been interpreted in line with the EU right to equal pay as including all aspects of remuneration and not just basic pay); a key, and controversial, part of holiday pay litigation.
Currently any EU decision reached before 1 January 2021 (pre-Brexit) is binding, although the Court of Appeal and the Supreme Court have the power to depart from EU decisions if they wish. As of the end of 2023 the bill allows lower courts, including employment tribunals, to ask appeal courts if they are still bound by certain retained case law when points of law of “general public importance” are at stake. The issue of how this is interpreted is likely to be the topic of future litigation.
Currently, if there is a conflict between UK and EU law, EU law takes priority. This will stop after 31 December 2023.”
The implications for employment law
It’s hard to tell what the bill’s impact will be. One thing is certain though: there will be significant upheaval in what has been an unchanging employment law landscape.
Will the bill be used as an opportunity to implement the government’s promise, or will large swathes of employment rights be swept away and not replaced? And what might be subject to change? The Working Time Regulations, and regulations in relation to agency workers, part-time workers and fixed-term employees are all in the firing line, as are the Information and Consultation of Employees Regulations and various health and safety regulations.
TUPE could also be subject to change; the government may decide to make it more business-friendly. For example, it might choose to make it easier to harmonise terms following a TUPE transfer – something which is not permitted under EU law.
Despite previous assurances, could this be the government that takes a gamble and deregulates employers with a view to increasing productivity and the free market?”
Employment laws contained in primary legislation will, by and large, be unaffected. The Equality Act 2010, for example, will remain in force even if the legislation that incorporates EU law is repealed. Any change to the existing regime governing direct discrimination, indirect discrimination and harassment seems unlikely.
It’s a different story for the collective consultation requirements contained in section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992, which derive from the EU. The obligation is not particularly onerous and trade unions are likely to fight any plan to remove it altogether, but it’s something which potentially falls away under the bill.
Implications for employers
We need to see what proposed before drawing any conclusions. Despite previous assurances, could this be the government that takes a gamble and deregulates employers with a view to increasing productivity and the free market?
In times that are already uncertain enough, employers will not relish the prospect of also having to keep on top of changing employment rights.