On 22 September 2022, the Government announced the introduction of The Retained EU Law (Revocation and Reform) Bill 2022 (the Bill). Currently, EU law is superior to UK law and the Bill, in short, has the intention of ending the supremacy of EU law from UK law by removing the special protection afforded to EU derived laws by the European Union (Withdrawal) Act 2018. 

The Bill directly impacts a predicted 2,400 Regulations across 21 Government departments including employment (discussed below), data protection, animal welfare, production standards and environmental.

On 31 December 2023, any EU derived regulations in UK law will be repealed (expire) or revoked (withdrawn), unless it is preserved by new UK law. This is referred to as the ‘sunset clause’. There is an option to extend the sunset clause until 2026 if necessary.

If, alternatively, the relevant Regulation is preserved in its current form or with amendments, it will be assimilated – this means that any previous EU interpretation would cease to apply, providing a ‘blank canvas’ for the fresh interpretation.

Which Employment Regulations Will Be Affected?

Key areas of employment law that falls within the scope of the Bill include (amongst others):

• The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).
• The Working Time Regulations 1998 – for example, the maximum 48 hour working week, rest breaks, paid holiday, and protection for night workers.
• The Agency Workers Regulations 2020.
• The Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.
• The Information and Consultation of Employees Regulations 2004.

This could affect established employment rights such as a 48-hour working week, rest breaks, paid holiday, equal treatment of agency and part-time workers and the protection of employment and rights under TUPE.

It is worth noting that the Bill only impacts regulations, not Acts. The current legislation in relation to, for example, discrimination (Equality Act 2010) or unfair dismissal (Employment Rights Act 1996) will be unaffected.

What To Expect

At this early stage, there seems to be three likely outcomes for affected laws at the end of 2023 or 2026, all of which are discussed below. It is worth noting that the Bill is currently going through Parliamentary consultation and once passed, the bigger picture and timeline / logistics should become clearer.

1. The EU derived regulation is revoked/repealed. This is perhaps the most draconian step and is probably the most unlikely for most affected employment laws. Regulations such a TUPE and the Working Time Regulations are entrenched in UK employment law and will almost certainly be preserved one way or another. Full revocation or repeal is possibly more likely with the some of the less common and perhaps less appreciated regulations such as The Agency Workers Regulations, but it is still hard to believe that that none of the legal principles within them will be preserved.
2. The EU derived law is preserved as new law with no amendments. Again, this seems somewhat unlikely. The Bill presents an opportunity for the Government to amend current legal principles. Whilst the examples given above of TUPE and the Working Time Regulations being entrenched in law, there are, without a doubt, principles that could be streamlined or improved. The Government are seemingly keen to remove any EU grip on UK law and might be hesitant to preserve the existing laws word for word without outing their own stamp on the matter.
3. The EU derived law is preserved with amendments. This outcome would appear to be most likely at this early stage so far as employment laws are concerned. The Government may be reluctant to start completely afresh given the size of the task at hand. Full revocation or repeal would require the Government to start from fresh on a blank piece of paper should they seek to preserve any of the previous legal principles in alternative law, adding to the already enormous administrative task. The extent of any amendments remains to be seen (and will certainly differ for each affected regulation) and the process is also uncertain, but we can more then likely expect to see preserved laws that, at the very least, resemble the previous EU derived equivalent.

Perhaps it is wishful thinking, but could we be in a position in a few years’ time where we have updated laws with the best elements of the EU regulations preserved alongside the streamlining / improvements afforded by any amendments? It remains to be seen.

Other Questions

The process is going to be lengthy and potentially a significant overhaul of UK employment law. Whilst the plan and timeline will become clearer over the coming weeks and months when more guidance is available, unanswered questions include:

• Will the usual process of consultation be followed? There is usually a strict process of multiple reading and reviews before new laws are introduced. Will this be efficient enough, or will allowances need to be made?
• What will happen to EU derived rights contained in existing Contracts of Employment? Will these continue to be binding contractual terms or will they be overridden by new / preserved and amended laws?
• What affect will the upcoming General Election have? Is there a chance that the current Government push the process through as fast as possible to avoid allowing a future Government to take over the decision making?

What Can You Do In The Meantime?

In reality, there is not much that you can do in the short term. Government guidance on the Bill is fresh and thin on the ground. We don’t know how this process will play out and exactly which EU derived laws will be affected. 

In the meantime, and until the sunset clause comes into effect, it is simply a matter of keeping an eye out and being aware of potential changes and amendments and how they will affect you and your business.