The snappily titled Retained EU Law (Revocation and Reform) Bill was published last week it will no doubt provoke much heated debate in the months to come.
The Bill is short on detail, but its implications are significant. At the end of 2023 the following are revoked:
(a) EU derived subordinate legislation;
(b) Retained direct EU legislation.
Pausing there for a moment many employment rights are derived from EU legislation
(ii) The right to paid annual leave and to rest breaks;
(iii) The 48 hour week;
(iv) Part-time Workers (Prevention of Less Favourable Treatment) Regulations;
(v) Fixed Term Employees (Prevention of Less Favourable Treatment Regulations, and
(vi) The Agency Workers Regulations.
All of these provisions will expire and cease to be effective after 31 December 2023, or possibly 2026, if the Government decide to extend the sunset provisions unless new legislation is introduced to retain the provisions that will expire, either in their current form or an amended version.
We have lived with TUPE, in its various guises since the original Regulations in 1981, although their real import was not appreciated until the 1990s. Those regulations have spawned much litigation but in broad terms transferring employees from one employer to another on like terms protects employees and provides certainty. Similar provisions exist in countries outside the EU block.
Whilst largely unheralded, at present, the Bill is likely to become a focal point not just within the employment context but for business generally. It is likely at a time of union unrest to spark further debate and argument between unions, employers and the bodies representing them. Many of the rights under threat will have been enjoyed by an entire generation of employees who have become used to working in a particular environment, removing the right to paid annual leave, or reducing that entitlement is likely to be difficult for existing employees, but removing some of the excesses may be beneficial to employers, although there will be an impact on employees.
One of the difficulties caused by the Working Time Regulations was highlighted earlier this year in Harper Trust v Brazel (see Natalie Wood’s commentary at https://bit.ly/3RaOG1N). Within the Technology Sector many will not be paying their salesforce “normal pay” when holiday is taken but just paying basic pay , to do otherwise would significantly drive up salary costs when dealing with global commission schemes and distort the labour costs. Some of the “excesses” and anomalies caused by the Regulations may therefore be removed whilst retaining the broader less contentious elements of the Regulations.
As the Bill progresses and as it becomes clear which provisions will be repealed or revised we will keep readers updated.
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.