How will employment law be affected by the Retained EU Law (Revocation and Reform) Bill?
The Retained EU Law (Revocation and Reform) Bill has caused grave concern across employment law circles. Opposition members have even gone as far as to label it ‘reckless’ during the recent Parliamentary debate, given its potential to remove huge swathes of modern employment law without plans for replacements. If the bill is passed, it will remove around 4,000 EU laws from UK statute books and mark the biggest change to employment legislation since the 1970s, which saw the introduction of discrimination and dismissal laws.
Presented to the House of Commons on 22nd September 2022, the bill has been described as “a bonfire of current employment law” by various law firms, including Burges Salmon, as the government will allow much of retained European Union Law to expire. The bill will automatically repeal any of these retained laws, including UK statutory instruments introduced to comply with EU law. This means that unless specific legislation is introduced to keep it, these laws will expire on 31 December 2023, consequently, triggering huge uncertainty surrounding the varying levels of impact this legal vacuum could cause for businesses,. Aas well as the potential rise in so-called “satellite litigation” on issues of interpretation. Some examples of this are:
- The Part Time Employees (Prevention of Less Favourable Treatment) Regulations 2000 and the Fixed Term Employees ((Prevention of Less Favourable Treatment) Regulations 2002 – as both of these were implemented via secondary legislation, then unless they are specifically saved by the Government before December 2023, both will be revoked and part-time/fixed-term employees will no longer have the right to parity of terms with full time/permanent employees.
- Equality Act 2010 – the requirements to combat discrimination on the grounds of racial or ethnic origin and also religion or belief, disability, age or sexual orientation were introduced via primary legislation which will remain in force in the form of the Equality Act. However, various principles of interpretation derived from decisions of the Court of Justice of the EU will no longer be applicable and therefore, unless addressed by the Government, will leave a vacuum in this area of the law.
- Transfer of Undertakings (Protection of Employment) Regulations 1981 & ,2006 – again, as secondary legislation, this would disappear, meaning that in the event of a sale of a business, employees would not transfer to the buyer, or have protection against dismissal, or preservation of their terms and conditions of employment. However, TUPE goes further than required by the European Acquired Rights Directive as it also covers insourcing, outsourcing and change of service provider. It is currently unclear whether this part of TUPE would survive assuming that the retained EU Law (Revocation and Reform) Bill passes into legislation and the Government takes no other action.
The Bill could also see the end of the maximum 48-hour working week and minimum paid annual leave. Article 157 of the treaty will also be affected, a detail that thousands of women rely on to ensure the same pay as their male co-workers.
The Regulatory Policy Committee (RPC), found that the Retained EU Law (Revocation and Reform) Bill was not fit for purpose when it published its formal opinion on the UK government’s regulatory impact assessment (IA) of the bill. The highly critical report outlines that there is a large degree of uncertainty surrounding the future of each piece of EU law, and furthermore, the IA fails to provide an assessment which properly indicates the impact the expiration of these laws will have.
The RPC also highlights the quality of analysis and evidence utilised by the IA to support other areas addressed in the assessment, such as rationale and options, cost-benefit analysis, wider impacts, and the monitoring and evaluation plan. Each of these areas received a weak or very weak ranking from the RPC, which means the government has provided inadequate support for its decision-making.
Opposition parties within the UK parliament have now tabled amendments to the bill, with over 50 lodged, including a proposal to extend the expiration date by a further three years to 31st December 2026, along with proposed amendments which aim to protect key workers’ rights, including maternity rights and annual leave.