The Retained EU Law - A Big Shake Up Planned

The Retained EU Law (Revocation and Reform) Bill 2022–23 was introduced to parliament on 22 September 2022 and, if passed, could represent the biggest shake up to HR and employment law in the UK for many years.

The Bill essentially sets an automatic expiry date on all laws that were introduced in the UK as a consequence of being in the EU. Since the UK is no longer in the EU, there is no requirement to keep the laws as they are. Unless the Government takes proactive steps to keep them, any existing piece of law will expire on 31 December 2023. This date can be extended to 23 June 2026 for some pieces of law to give the Government more time to assess whether it is to be kept.

There are around 2400 pieces of law affected by this move and each government department will have responsibility for deciding whether it wants to keep each piece of law. Even when a law is kept, it may be changed from its current application.

There are 314 pieces of law that are allocated to the Department of Business, Energy, Innovation and Skills, which is responsible for employment laws, though not all of those will be associated with the workplace.

Which employment laws are affected?

The following workplace laws are amongst those derived from the Retained EU Law:

• Working Time Regulations 1998: minimum annual leave entitlement and pay, maximum working hours, minimum rest breaks.

• Transfer of Undertakings (Protection of Employment) Regulations 2006: protection of employee terms and conditions when the business they work for is bought out, or the service they provide is transferred to another provider.

• Maternity & Parental Leave etc Regulations 1999: time off work for parents.

• Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000: protection for part time workers against less favourable treatment because of their part-time status.

• Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002: protection for fixed-term employees against less favourable treatment because of their fixed-term status.

• Agency Workers Regulations 2010: equal treatment for agency workers who have 12 weeks service with an end user.

Could these laws be removed completely?

Theoretically, yes, but assuming the Government resists any temptation to completely eradicate existing laws and go back to the drawing board, the basic structure of entitlement and protection is expected to remain. However, there are some areas that are more obviously susceptible to change than others.

Lots of our current interpretation of the Working Time Regulations 1998 stems from case law. When a judgment is made at the Employment Appeal Tribunal, Court of Appeal, Supreme Court or European Court of Justice, it creates a binding precedent which lower courts must follow. The law books are not automatically altered, but the principle becomes one that employers must adhere to because an employment tribunal will be legally bound to apply it to future cases on the same topic.

Over the past 15 years, significant case law decisions have been made in relation to the accrual of annual leave during periods of long-term sick leave; how long an employee retains the right to take annual leave and be paid for it after a period of long-term sick leave; whether annual leave needs to be requested in order for it to automatically carry over to the next leave year during sickness absence; the inclusion of individual performance-based commission and regular overtime pay in holiday pay. This list is not exhaustive as there are plenty of other examples.

Despite the years that have passed since some of these judgments, the Government has not taken steps to rewrite the legislation in any of these areas. This means that any new version of working time laws may operate to overturn this binding case law with the effect that, for example, no commission payment is to be included in holiday pay.

The Working Time Regulations 1998 currently require workers to sign an agreement if they are happy to for more than 48 hours per week, on average. This is called a 48-hour opt-out agreement. Workers who have not signed this agreement cannot be required to work over that limit. It is likely that a newly drafted set of working time laws will remove the requirement to “opt out”.

When employees transfer to a new employer under TUPE laws because their business has been bought out, the law allows only a limited scope to change their existing terms and conditions. “Harmonisation”, ie changing terms and conditions of transferring employees simply so there is one set of rules to follow, rather than one set for the existing staff and one for the transferred staff, may become lawful.

The above represents an educated guess from legal experts, on how the future of the Retained EU Law may be shaped.

The contractual position

Legal entitlements are often written into contracts of employment especially where annual leave is concerned. Where a contract states that an employee is entitled to 5 weeks of paid annual leave, it becomes a contractual entitlement. Removing the law on minimum annual leave, or reducing it, has no effect on contractual entitlements. They will remain in place for existing employees and can only be changed with the employee’s agreement unless there is a strong business case for change and the correct procedure is used to change them, which is tricky.

How do you think your business will be affected by these changes? What were your takeaways? Do leave your thoughts in the comments box below.

About The Author?

I’m Lisa Harley and I have 20 years experience in Human Resource Management with a degree in Psychology. I made the leap from corporate to founding my own HR consultancy and have worked with a wide range of small to medium size businesses over the years.

My mission is to help Tech & Fintech businesses with operations in the UK feel secure and succeed in the new world of Employee Relations.

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