Since joining the European Union on 1 January 1973, UK law has been greatly influenced by EU legislation. Therefore, the decision to leave the EU following the EU referendum vote in 2016 caused many to question what would happen to the UK’s legal framework. The EU legislation that still applied in the UK on 31 December 2020 was retained as part of the UK domestic law. While this allowed the UK to have a smooth transition out the EU, the government never intended to keep the retained EU law indefinitely.
Therefore, on 22 September 2022, the government introduced the retained EU law (Revocation and Reform) Bill (‘the Bill’). The Bill will have the effect of causing all EU-derived subordinate legislation and retained EU law to be revoked by default on 31 December 2022, unless members of parliament take steps to implement it into UK law. The government have also introduced a sunset date of 23 June 2026 in case there is consensus to delay the deadline. The purpose behind the Bill is the government’s way of restoring primacy to Acts of UK Parliament and to effectively eradicate the supremacy of EU law.
We currently have a total of 2,417 pieces of retained EU Law and Parliament will now have the decision to either amend, retain or revoke any of the 2,417 pieces of legislation by the 31 December 2022 or 23 June 2026.
Some of the UK’s fundamental employment law rights derive from European Union Treaties. These include the working time regulations, maternity rights and the transfer of undertakings.
Prior to the EU written statement directive 1991, employees were not entitled to be given a written statement which would set out their pay and working conditions before starting work. In addition to this, the working time regulation directive 2003 introduced a maximum 48 hour working week, a daily rest period of 11 consecutive hours, and rest breaks during the working day. While there is an option for workers to opt-out of the maximum working limit, this directive overall reduced the number of people working excessive hours in the UK.
This directive also provided workers with a statutory right to paid annual leave. This introduction had a massive impact on workers, they could now take days off work without the pressure of considering their loss of earnings.
Working parents and carers also benefited from the protections offered. The EU pregnant workers directive 1992 led to an increased amount of health and safety protections. Expectant mothers were allowed paid time off for any antenatal appointments and employers had to assess and ensure that their working conditions were suitable for any pregnant workers.
The directives listed above are just some of the examples of EU legislation that are now at risk of either being repealed or amended.
While in theory parliament have the power to repeal some of the most fundamental pieces of employment legislation. It seems inconceivable to believe that we will completely lose these rights that have offered workers so much protection over the years.
Putting rights such as paid annual leave at risk could potentially give rise to the exploitation of workers who are in vulnerable positions. It is also likely that any significant changes to these rights would cause a shift in power in favour of businesses as these changes would ultimately benefit employers.
Many changes to the employment regulations are also likely to cause an uproar and lead to widespread industrial strikes which is something that would be in government’s interest to avoid. It is therefore likely that we will see more amendments to the retained EU law instead.
The calculations of holiday pay for workers has often been said be time-consuming for employers and therefore it is likely that we may see a simplified regulation assimilated into domestic law. We may also see changes to TUPE, in terms of the ability to change the terms and conditions of an employee’s employment once there has been a transfer.
While there is a lot of employment legislation at risk, there are key employment laws that will not be affected. The Equality Act 2010 will remain untouched as it is contained in primary UK legislation therefore even if the legislation that incorporates EU law is repealed it will be remain enforced.
It is also likely that the deadline will extend to 23 June 2026, as it does not seem likely that parliament will be able to confidentially review 2,417 pieces of legislation within three months to make the decision on whether these laws should be repealed or amended.
Since being introduced the Bill has caused a lot of uncertainty as there is no real indication of what legislations will be revoked. The Bill also fails to provide any guidance on what internal reviews will be used by the MPs to assess the 2,417 retained EU laws, therefore there is no telling how the MPs will use their powers.
The MPs however appear to be concerned over retaining the rights of key workers as both SNP and Labour members have tabled amendments to the Bill to propose that key worker’s rights covering health and safety law, annual leave and maternity rights are replaced with new versions and are not repealed.
While we have listed a few legislations that may be at risk of being either amended or repleaded. We do not know for certain what changes we will actually see once the sunset date has passed. We now have to wait to see what EU retained law will be affected by the Bill. This may not be the best news for employers, workers or unions as this now effectively puts them in limbo as to what changes are expected to come into force and the impact that this is going to have on workers’ rights and businesses. It may be advisable for employers and businesses to start considering the potential outcomes that the Bill will have. For example, employers should be prepared to make amendments to their current policies and contracts.
