The Retained EU Law (Revocation and Reform) Bill 2022-2023 (‘the Bill’) has now been published and it follows that the employment law landscape in the UK may change significantly very soon.
The Bill provides that by the end of 2023, the UK government will either amend, repeal or replace any EU-derived employment law. The Bill will therefore dramatically speed up the process of reviewing and amending any retained EU laws.
The UK government’s intention is to create regulations specific to the UK’s own needs and thereby disposing of any allegedly outdated and burdensome EU laws.
This could of course, have major implications for UK employment law given that some of our fundamental employment rights derive from EU law.
Berry Smith consider below, what this means for UK employment law:
How will EU-derived laws be changed?
The default position will be that by the end of 2023, all regulations under EU-retained law will automatically be:
- Amended: meaning the law will change slightly to encourage clarity by removing any ambiguity or doubts, but ultimately the law will be turned into a purely UK law and stripped of the impact of any EU case law.
- Repealed: the law will be scrapped without a UK equivalent being put in place.
- Replaced: the law will be completely replaced with a new UK version which would not need to be interpreted in line with EU law. However, any new laws cannot increase any regulatory burden.
The above are the actions that will be taken, unless the UK government actively take positive steps to retain any EU law.
The Bill also includes a ‘sunset clause’ that means that at the end of 2023, anything left of retained EU law will fall away, although this can be extended to June 2026 if the government needs to extend the deadline in relation to specific laws.
What laws and regulations are likely to be affected?
We can expect the Bill to impact, in particular, the:
- Working Time Regulations;
- The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE);
- Maternity & Parental Leave Regulations;
- Agency Workers Regulations;
- Part-time Workers Regulations;
- Fixed term Employees Regulations; and
- Various Health & Safety Regulations.
We have not yet been given an indication of which regulations the UK government intends to amend, repeal or replace under the Bill.
This Bill will of course, only apply to EU retained law. Any purely domestic legislation such as the Equality Act 2010, will not be impacted.
What does this mean in practice?
Under the Bill, the requirement for UK courts to interpret UK legislation in the light of EU case law will end on 31 December 2023. The requirement for courts to apply EU principles will also transpire on 31 December 2023. These include principles that many of us are used to, such as the principle of equal treatment.
This may mean that employers will need to re-formulate certain practices to give effect to new UK principles rather than any old EU principles.
However, it is likely the practical impact of this element is likely to be limited, as UK courts tend to adopt the approach of following similar principles.
The Bill will now need to work its way through the parliamentary process but it is clear that significant reform or repeal could take place in a very short amount of time, to pieces of legislation that impact employers and businesses on a day-to-day basis, such as the Working Time Regulations.
It is challenging for employers to try to prepare for this in advance, given the lack of information we currently have.
Employers will also find it difficult to implement any changes in such a short amount of time. Historically, when it came to implementing EU directives, employers would generally have at least two years to get ready. However, it seems that employers may not have this period of grace this time.
Notwithstanding this, employers should stay alert for any announcements to ensure that they can seek advice and get ahead of any changes that are introduced.