The EU Law (Revocation and Reform) Bill 2022 – What does this mean for employers?

Martin Williams, Head of Employment Law at Mayo Wynne Baxter, explains.

On 22 September 2022, the government announced the introduction of the Retained EU Law (Revocation and Reform) Bill 2022.  The bill was initially thought to impact 2,400 pieces of retained EU law, but this has since been revised upwards by 1,400. Could there be more? This cannot be completely ruled out.

The laws are spread across hundreds of policy areas and, consequently, many sectors of the economy. The detailed concentration in this article is on the employment provisions.

On 31 December 2023, and in accordance with the ‘sunset clause’ in the bill, any EU based regulations in UK law will be repealed (cancelled) or revoked (withdrawn) unless they are specifically preserved and incorporated into UK law.

The bill does include the potential extension of the sunset clause until 2026. This allows additional time to assess whether some retained EU laws should be preserved. However, it has to be doubted that proper scrutiny would be possible in that time frame.

The bill also provides for some other important changes; first, it removes the principle of EU law supremacy, which as it stands means that EU law trumps domestic legislation where there is a conflict; secondly, it also facilitates the move away from EU case law taking precedent in the UK courts. It allows the Court of Appeal or the Supreme Court to depart from existing and binding domestic cases which have already been decided on the legislation but which are tainted by EU law if the courts consider it “right to do so”.

At the time of writing, the bill is at the committee stage and the challenges to its broad scope are many. One of the key concerns is the power it gives to ministers, without recourse to Parliament, to decide what should and should not be law.

Areas of employment law, which businesses and HR professionals have all become familiar with, and which fall under the bill’s remit, include:

• The Working Time Regulations 1998, which deal with maximum weekly working time and paid holiday.

• TUPE 2006, which deals with the employment implications of business transfers.

• The Part-Time Workers (Prevention of Less Favourable Treatment) Regulations.

• The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations.

• The Agency Workers Regulations 2010; and

• The Information and Consultation of Employees Regulations 2004.

This means that the bill could impact long-established employment rights like the maximum 48-hour working week, rest breaks and holiday pay, rights of employees when a business transfers under TUPE, equality of treatment of part time and fixed term workers, among other rights. 

It is worth noting that, since the bill only applies to regulations and not acts, an employee’s right not to be discriminated against under the Equality Act 2010 will not be affected.

So, what does this mean for employers?

At this early stage it is uncertain exactly what the bill will mean for employers.  The bill hands power to the government and they will decide what survives the cull, and in a way that will not be transparent.  What we do know is the bill has the potential to be the biggest shake up in UK employment law in many years.  

Theoretically, the government could decide that they do not want to retain any of the EU-derived legislation, and they could revoke it. With many of these employment law provisions being now deeply rooted in UK law, this seems highly unlikely.  

However, the revolutionary zeal of a government seeking to demonstrate the benefits of Brexit may know no bounds. Added to this is the mantra of creating growth by cutting the ever cited, but undefined, “red tape”.

It therefore seems most likely that a number of the EU-derived legislative provisions that have become part of our domestic employment law landscape will be undergoing changes, whether an overhaul or minor amendments.  

The Trade Union Congress is greatly concerned about the bill and the changes that might be made, considering that it could lead to the erosion or, worse, the removal of workers’ rights, for example, in respect of holiday, safe working hours and limits and parental leave.  However, the government has said that it is committed to keeping “high standards in areas such as workers’ rights…”.  

Whether the government can “realise the opportunities of Brexit” while maintaining “high standards” of workers’ rights, remains to be seen.  

If the intention is to replace all EU-derived employment provisions, this seems an impossible task. Nevertheless, this is the target date the government has set.  It could be that they will, therefore, inevitably rely on the extension to December 2026, but this will take us past the next election. 

The only thing that does seem clear at this stage, is the uncertainty which now follows for both employers and employees. Meanwhile, businesses should keep a watchful eye out for any changes that do filter through and be sure to implement them when that happens.

mwilliams@mayowynnebaxter.co.uk

https://www.mayowynnebaxter.co.uk/