On 22 September 2022, the UK Government introduced the Retained EU Law (Revocation and Reform) Bill, pursuant to which all EU law introduced into the UK legal system following the UK’s withdrawal from the European Union on 31 January 2020 (Retained EU Law) must be reviewed and either replaced with new domestic legislation or automatically repealed on 31 December 2023. This date may be extended to 23 June 2026 in respect of more complex reforms.
Retained EU Law covers most aspects of UK law and is law that has been incorporated into UK legislation in either domestic secondary legislation or retained direct EU legislation. The Government has produced a Retained EU law dashboard that includes 2,400 pieces of retained EU law. From an employment law perspective this includes the right to holiday pay, limits on working time, parental leave, part-time and fixed-term worker regulations, agency worker regulations and the operation of TUPE (the Transfer of Undertakings (Protection of Employment) Regulations 2006).
Sunset of Retained EU law
Under s1 of the Bill, retained EU law will be revoked at the end of 2023 (unless it is reformed or preserved and incorporated into domestic law in modified form). There will be an extension mechanism that allows departments a further period until 23 June 2026 where necessary. Any retained EU law that remains will be assimilated in the domestic statute book and termed assimilated law. Parliament and the devolved authorities will be able to change retained EU law by statutory instrument. This may mean that different devolved authorities make different amendments or retain different legislation.
In addition to the decision as to whether to retain EU law, the principles of EU law such as supremacy of EU law and directly effective EU rights and equivalence will end on 31 December 2023. There is no right for an extension in relation to the general principles.
It is unclear, at this stage, which laws the Government will elect to retain, giving rise to uncertainty and concerns about the risk of employment rights disappearing. However, the Government has indicated its commitment to keeping “high standards in areas such as workers’ rights and the environment” and stated that the Bill will enable the UK to grasp opportunities provided by Brexit, move away from outdated EU laws and establish laws that are bolder, go further than existing laws and are better suited to the UK. It is therefore unclear what impact this will have on employment legislation. It may be likely that there will be some amendments to TUPE, although the UK legislation gold plated the EU directive, there are areas which are ripe for reform, such as the limitation on the ability to harmonise terms and conditions of employment after a transfer. In addition, there may be moves for repeal of the rights for agency workers under the Agency Workers Regulations. It is unlikely that the Working Time Regulations providing annual holiday to workers will be repealed, but there are amendments that could be made such as the limitations on working weeks and accrual and carry-over of holiday.
It is important to remember that primary legislation, such as the Equality Act 2010 will not be revoked by the Bill. However, the way in which the primary legislation will be interpreted will change due to amendments relating to the interpretation of case law.
EU case law
The other additional point is that with effect from 31 December 2023 any EU decision reached before 1 January 2021 will no longer be binding across all tribunals and courts. Currently the Court of Appeal and the Supreme Court have power to depart from EU decisions if they wish to. The Bill provides that employment tribunals and the Employment Appeal Tribunal will have greater discretion to depart from the body of retained case law. The lower court or tribunal will be able to refer points of law to an appeal court where it considers the points of law are of general public importance.
The Bill will be debated in both houses of parliament over the coming months and could be amended in response to the concerns raised.