Taking back control of employment law?

The Retained EU Law (Revocation and Reform) Bill was published quietly at the end of September.

Broadly speaking, this mundane-sounding piece of legislation will automatically repeal much of EU-derived employment law from the end of 2023, unless the UK Government specifically decides otherwise.

Which laws might this affect?

Many of our employment rights came from Europe. And the EU courts have been instrumental in extending rights for UK workers, including around holiday pay.

As such, and given the interwoven nature of UK and EU laws, the list this potentially affects is both extensive and somewhat uncertain.

But examples include TUPE, the right to paid holidays, the limit on a working week and protection of part-time and agency workers.

Clearly employees and unions won’t welcome these changes, but it also means undesirable uncertainty for business at an already challenging time.

What now?

This certainty for businesses was precisely why legislation was introduced to retain EU law, as it existed, after Brexit.

We will have to wait to see how much time the government will be able to devote to reviewing retained EU law and which laws it will allow to pass into the history books.

It’s hard to predict, and the answer is unlikely to lie in what government ministers have said before.

For example, tweeting in January 2021, Kwasi Kwarteng (then business secretary) said the government intended to “protect and enhance workers’ rights going forward, not row back on them”.

Interestingly, the bill specifically states regulations introduced to replace retained EU law may not “increase the regulatory burden”, which is exactly what we’d expect to see if there were moves to enhance workers’ rights.

Sanctions?

Importantly, the UK entered into an agreement with the EU pledging, post-Brexit, that neither would weaken or reduce employment regulations “in a manner affecting trade or investment.”

As such, if there is what many are calling a “bonfire of workers’ rights” there is a real risk of EU enforcement action, including the possibility of UK trade sanctions.

While the devil will be in the detail, one thing is certain: this won’t be used to extend or improve workers’ rights.

If you would like to read more you can check out our employment law blog posts.