Wed 24 May 2023

Post Brexit changes to employment legislation announced as sunset clause abandoned

The Retained EU Law (Revocation and Reform) Bill looks set to have little impact on employment law, but significant changes to existing legislation have been separately announced.


The UK Government has announced that the sunset clause contained in the Retained EU Law (Revocation and Reform) Bill clause is being abandoned altogether. Had it not been abandoned, this would have caused the automatic revocation of EU legislation that was not expressly retained on 31 December 2023.

Instead, all EU law will remain binding unless it is expressly repealed, with a list of the legislation to be revoked to be included in the Bill.  At this time there are three fairly niche employment law related regulations contained on that list.  These are:-

  • The Posted Workers (Enforcement of Employment Rights) Regulations 2016
  • The Posted Workers (Agency Workers) Regulations 2020; and
  • Community Drivers' Hours and Working Time (Road Tankers)(Temporary Exception)(Amendment) Regulations 2006.

Of more significance to employers is the separate announcement that changes are being made to the Working Time Regulations and TUPE with a consultation on the proposals opening two days later.

Working Time Regulations

The consultation is seeking views on proposals including the removal of the requirement to keep records of workforce working hours.  It also proposes to merge the basic EU 20 day annual leave entitlement and the additional UK 8 day entitlement into one 28 day entitlement to annual leave.  This sounds relatively straight forward, but currently the basic entitlement and the additional UK entitlement can be treated differently for the purposes of calculating holiday pay.  It remains to be seen how this will be handled but it is possible that it could result in holiday pay levels decreasing.  Finally, the introduction of "rolled up" holiday pay is proposed - this is where workers are not actually paid holiday pay while on holiday, but an additional payment is made during working weeks to reflect payment for holidays. This would likely be of most use to employers of zero hour workers, other workers working irregular hours and, potentially, term time workers.


The consultation also includes proposals removing the requirement to elect employee representatives (where appropriate representatives are not in place already) for the purposes of TUPE consultation for (a) businesses with fewer than 50 employees (irrespective of the size of the transfer) and, separately, (b) TUPE transfers affecting fewer than 10 employees.  Businesses would instead consult directly with affected employees.  The proposed change will be consulted on in advance of implementation.

A timescale for implementation of these changes is yet to be announced but there is now a clear direction of travel.

Retained legislation

The consultation also included confirmation that the following regulations and the rights they bestow on workers and employees will be preserved:-

  • Maternity and Parental Leave etc Regulations 1999
  • Paternity and Adoption Leave etc Regulations 2002
  • Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000
  • Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002
  • The Agency Workers Regulations 2010
  • Information and Consultation of Employees Regulations 2004
  • Transnational Information and Consultation of Employees Regulations 1999
  • WTR 1998 and the TUPE regulations (with the exception of the issues being consulted upon).

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