Thu 23 Feb 2023

What employment rights will disappear as a result of the Retained EU Law (Revocation and Reform) Bill?

The Retained EU Law Bill could result in significant changes for UK employment rights.


What is the Retained EU Law (Revocation and Reform) Bill?

The Retained EU Law (Revocation and Reform) Bill ("the Bill") was introduced into Parliament in September 2022.  It relates to "Retained EU Law" - that is the EU-derived legislation that was preserved in our domestic legal framework following Brexit but that was, according to the UK Government, never intended to remain on the statute book indefinitely. 

What effect does the Bill have?

The Bill, colloquially known as the "Brexit Freedoms Bill", will give ministers and the devolved government (dependant on whether the relevant legislation relates to a reserved or devolved matter) wide-ranging powers to preserve, restate or replace the Retained EU Laws.  The default position is that any legislation that has not been specifically preserved will fall away on the "sunset date" of 31 December 2023.  That date can though be postponed by ministers up to 23 June 2026 - the tenth anniversary of the referendum that led to the UK leaving the EU.

As well as Retained EU law potentially falling away, the supremacy of EU law over domestic UK legislation will also end.  This means that UK courts and tribunals will more easily be able to depart from Retained EU case law.  It will also become easier for Retained EU legislation to be amended, with less parliamentary scrutiny of changes and a speedier process.

What does this mean for employment rights

The position is currently unclear.  The current UK Government manifesto promised to raise standards for workers, but some commentators have talked about a "bonfire" of workers' rights. Some rights derived from the EU have been enhanced further in the UK, for example, the Working Time Regulations provides for 28 days holiday per year while the EU Directive provides for only 20 while TUPE rights were "gold plated" by domestic legislation.  However, it has been suggested that both the Working Time Regulations and TUPE are amongst the legislation most likely to be affected. 

Other regulations protecting agency workers, part-time workers and pregnant women and new parents could be in the firing line.  However, during a parliamentary debate in the House of Lords in February it was indicated that, in relation to maternity rights at least, the UK Government wishes to retain the level of protections currently available.  Questions in relation to the retention of TUPE and the Part-time Workers (Prevention of Less Favourable Treatment) Regulations received no clear response.

When will the Bill come into force?

As at mid-February 2023, the Bill had completed its passage through the House of Commons, had its first and second reading in the House of Lords and will be at the Committee Stage from 23 February 2023.  However, even if the Bill becomes law fairly quickly it still seems unlikely from a purely practical standpoint that there will be time to review the many pieces of legislation (in the region of 4,000 laws) that will be affected prior to the 31 December 2023 sunset date.  For the time being, that leaves a significant degree of uncertainty for employers and the possibility of significant changes being made within a fairly short period of time.  This article will be updated as and when more information becomes available.

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