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Recent articles in mainstream media, some of which from well known ‘reliable’ sources, have suggested that certain EU derived employment rights, and in particular equality laws, were at risk of being scrapped at the end of December 2023 when the Retained EU Law (Revocation and Reform) Bill is expected to come into effect. Indeed, these same sources explained how protections such as pregnancy and maternity rights, the right to equal pay, and the right not to be discriminated against, would need to be ‘reinstated’.
But how true is this? Did the Government really have to take action to protect fundamental workers’ rights from being scrapped overnight? Unsurprisingly, the answer to this question is no. As can often be the case, these reports were sensationalised to attract readers.
So, what is the true position?
Following the Brexit vote, The European Union (Withdrawal) Act 2018 was introduced as a means to preserve the ‘status quo’ during a period of ‘transition’. It was anticipated that during the transition period, the UK and the EU would negotiate the terms of their relationship post Brexit, whilst all existing EU laws remained in place. This included laws (amongst others) relating to workers’ rights. This ‘frozen’ EU law was given a special status (meaning it could not be easily changed or replaced) and became known as ‘EU Retained Law’.
In September 2022, the Government introduced the EU Law (Revocation and Reform) Bill. This Bill received Royal Assent in June 2023, and was largely in force by the end of August 2023. The Bill (commonly referred to as the ‘Brexit Freedoms Bill’) sought to remove the ‘special status’ of EU Retained Law by the end of December 2023, making it easier to restate, replace or revoke EU laws.
Contrary to what has been reported in the media, the so-called “Brexit Freedoms Bill” does not automatically scrap EU law (rather just makes it easier to restate, replace or revoke it). What this means is that EU law (including workers’ rights and equality laws), remain in place and will be preserved as ‘assimilated law’ unless revoked. So, we can all breathe a sigh of relief and hopefully take some reassurance from the fact that maternity, equal pay, and other anti-discrimination laws are not and were not at risk of being binned at the end of the year.
While the Brexit Freedom’s Bill does not seek to scrap existing EU derived legislation, it does put an end to the supremacy of EU case law decisions over the UK courts. In order to ensure that key EU legal judgments remain valid, the Government has recently published The Equality Act 2010 (Amendment) Regulations 2023, which will come into force on 1 January 2024. These Regulations will enhance existing discrimination protection by codifying certain important EU case decisions into UK legislation – so quite the opposite of equality protections being scrapped.
The Regulations will preserve:
In addition to the changes to the Equality Act, the Government has also signalled its intention to make amendments to the Working Time Regulations and the Transfer of Undertakings (Protection of Employment) Regulations (TUPE). Earlier this month the Government laid down draft regulations (referred to as The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023), which seek to make changes to these. The Regulations are in draft form for now and need Parliamentary approval before being enacted.
In respect of TUPE, the requirement for employers to elect employee representatives for the purpose of TUPE consultations for a) businesses with fewer than 50 employees and b) where the transfer involves the transfer of fewer than ten employees, would be removed. In these situations, businesses would be able to consult directly with employees – provided there are no existing employee representatives in place.
Proposed changes to the Working Time Regulations include:
Over the next few years, we could see the UK government making changes to other EU-derived employment legislation (to the extent that they are impacted by EU law) which have been particularly unpopular and troublesome for UK business:
For now, we keep our beady eyes open for any reforms to come.
Our team of experts can assist on various areas of employment law, to improve your business processes and overall performance. For advice on these topics, or areas discussed in this article, please contact us today on [email protected].
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.
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If you have any questions relating to this article or have any legal disputes you would like to discuss, please contact the Employment team on
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