Is employment law as we know it being swept away?
The Retained EU Law (Revocation and Reform) Bill 2022-23 (the Bill) was introduced to the House of Commons on 22 September and makes provision for significant changes to the current status and operation of retained EU law within the next 15 months.
According to the government press release, which accompanied the introduction of the Bill, there was never any intention for retained EU law "to sit on the statute book indefinitely", and the Bill is declared to be part of the government's "commitment to put the UK statute book on a more sustainable footing". As part of its intention to reclaim the sovereignty of Parliament, the government has stated that it "will ensure that only regulation that is fit for purpose, and suited for the UK will remain on the statute book".
The Bill provides that all retained EU law contained in domestic secondary legislation (such as, for example, the Working Time Regulations) and retained direct EU legislation will be revoked on 31 December 2023 unless a decision has been made to preserve it. This means that over the next few months government departments and the devolved administrations will need to decide which retained EU law can expire, and which should be preserved and incorporated into domestic law.
The Bill allows for an extension of the revocation date of certain legislation to a later date (which must be no later than the end of 23 June 2026) to enable departments to have additional time, where necessary, to assess whether some retained EU law should be preserved.
EU law will no longer have supremacy. Currently if there is a conflict between UK and EU law, EU law takes priority, but this will no longer be the case after 31 December 2023. This will impact, for example, on how the courts look at "normal pay" (which has been interpreted in line with the EU right to equal pay as including all aspects of remuneration and not just basic pay); a key, and controversial, part of holiday pay litigation.
At the moment any EU decision reached before 1 January 2021 (pre-Brexit) is binding, although the Court of Appeal and the Supreme Court have the power to depart from EU decisions if they wish. This will change so that, as of the end of 2023, lower courts (which will include employment tribunals) will be able to ask appeal courts if they are still bound by certain retained case law when points of law of "general public importance" are at stake.
It's hard to tell what the Bill's impact will be, but we can certainly look forward to significant upheaval in what has been, over the past few years, a relatively unchanging employment law landscape. Legislation in the firing line includes the Working Time Regulations, Regulations in relation to Agency Workers, Part-time Workers and Fixed term Employees, as well as the Information and Consultation of Employees Regulations and various health and safety regulations. TUPE is something else which may be subject to change; the government may decide to make it more business friendly. For example it might choose to make it easier to harmonise terms following a TUPE transfer (something which is not permitted under EU law).
Employment laws contained in Acts (primary legislation) will, by and large, be unaffected. The Equality Act 2010, for example, will largely remain in force even if the legislation that incorporates EU law is repealed. Any change to the existing regime governing direct discrimination, indirect discrimination and harassment seems unlikely. It's a different story though for the collective consultation requirements contained in section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 which derive from the EU and were put into the Act by Regulations. The obligation is not particularly onerous and trade unions are likely to fight any plan to remove it altogether, but it's something which potentially falls away under the Bill.
The implications of the Bill remain to be seen, but in times which are uncertain enough already, employers will not relish the prospect of also having to keep on top of changing employment rights.