UK: Brexit: Retained EU Law Bill
The Brexit Freedoms Bill – formally known as the Retained EU Law (Revocation and Reform) Bill was published on 22 September 2022, with potentially significant consequences for UK employment law. As part of the Brexit arrangements, most EU law in force in the UK on 31 December 2020 was preserved as “EU retained law”.
The Bill includes provisions which allow certain retained EU law to be saved (by being reinstated), replaced or scrapped altogether by 31 December 2023. Significantly, the Bill includes a clause which means that, at the end of 2023, what’s left of certain retained EU law will simply disappear. That is 15 months from now. Although this deadline can be extended to 23 June 2026 if the government needs to extend the deadline in relation to specific laws. However, the government will need to positively decide which laws this applies to, otherwise they will simply fall away.
It was never the UK Government’s intention to keep EU retained law on the statute books for ever; indeed Parliament already has the power to repeal EU based law. However, this Bill expedites that process and involves less parliamentary scrutiny.
So how will the Bill affect UK employment law? The reality is we simply don’t know precisely. However, there are some relative certainties. For example, the Bill only relates to secondary legislation and not primary legislation such as Acts of Parliament. This means that it will not affect key statutes such as the Equality Act 2010 (discrimination and equal pay), the Employment Rights Act 1996 (unfair dismissal and redundancy rights) and TULRCA 1992 (trade union and collective redundancy consultation rights). It could, however, affect other key employment rules such as the Working Time Regulations 1998 (holiday rights, rest breaks and the 48-hour working week), TUPE 2006 (protection of employment on transfer of a business), Agency Workers Regulations 2010 and other discrimination-related regulations such as rules covering part-time workers and fixed-term employees.
Key Action Points for Human Resources and In-house Counsel
Unfortunately, this Bill will only serve to create uncertainty for employers. The government has given little indication as to what employment laws it wishes to keep, replace or scrap. We can have a good stab at guessing what might change but nothing is certain since there are so many variables. The UK is due to have a General Election in 2024, which falls before the final extension date set out in the Bill, and a new government may have its own ideas for reform.
The Bill has also yet to be scrutinised by Parliament and could well be watered down as a result. Finally, any significant reduction of employment rights which makes the UK more competitive than other EU member states could be in breach of its Trade and Cooperation Agreement with the EU.