Follow up

Retained EU Law (Revocation and Reform) Bill

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Could there be a bonfire of EU-derived employment laws?

Background

Following the end of the Brexit transition period on 31 December 2020, most EU-derived domestic laws, directly applicable EU legislation and directly effective rights derived from EU treaties/directives as at that date still apply in the UK - known as retained EU law. From an employment perspective, it includes such subordinate legislation, i.e. regulations, as the Working Time Regulations 1998 (SI 1998/1883) (WTR) , the Agency Workers Regulations 2010 (SI 2010/93) , most of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) (TUPE) , the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551) and the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (SI 2002/2034) . It also includes directly effective equal pay rights under the EU Treaty .

What’s changing?

The Retained EU Law (Revocation and Reform) Bill (see Follow up ) includes provisions to:

• automatically revoke all EU-derived subordinate legislation (which includes the employment legislation set out above) and retained direct EU legislation on 31 December 2023, unless the government specifically legislates to save particular retained EU laws (and there’s also power to extend the revocation date of certain retained EU laws until 23 June 2026 at the latest)
• repeal s.4 European Union (Withdrawal) Act 2018 , which currently includes directly effective rights derived from EU treaties/directives within retained EU law, by 31 December 2023
• end the supremacy of EU law, and give domestic legislation priority over retained direct EU legislation, by 31 December 2023.

Pro advice. The government will still have power to legislate to keep specific retained EU laws beyond the end of 2023, but this is a tight timescale in which to review what is a large quantity of legislation (over 2,400 pieces of legislation in total), and so it remains to be seen what retained EU employment law will be allowed to expire, what will be preserved and what will be replaced with new legislation.

Pro advice. As it’s impossible to predict what the government might do, you must continue to apply retained EU employment law as it currently stands, not based on what it may be by the end of 2023. It’s hoped the government will soon clarify what retained EU employment law it intends to preserve, so that you can plan accordingly.

Pro advice. It’s possible the EU could take action against the government here for breach of the UK-EU Trade and Cooperation Agreement as it contains a reciprocal commitment not to weaken or reduce labour and social standards (including fundamental rights at work and employment standards) in place on 31 December 2020 in a manner that affects trade or investment.

Pro advice. Employment rights contained in primary legislation, such as the Equality Act 2010 , are not affected by the sunset provision.

Pro advice. The Court of Appeal and Supreme Court currently have power to depart from Court of Justice of the European Union case law as at 31 December 2020 (retained EU case law), but lower courts don’t have this power. The Bill also contains provisions for a new reference procedure for lower courts and tribunals, allowing them to refer points of law of “general public importance” on retained EU case law to higher courts, and this should make it easier to depart from retained EU case law, giving rise to the potential for significant future changes in established employment case law.

Retained EU Law (Revocation and Reform) Bill