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How will the Retained EU Law (Revocation and Reform) Bill 2022 affect employment laws in the UK?

Post written by JMW Solictors LLP 


Following the UK’s exit from the European Union, it has been anticipated that lawmakers will attempt to move away from retained EU legislation and make their own mark. Many UK Regulations are derived from EU directives, and since Brexit those Regulations are still applicable.


Whilst it was expected that the UK would remove some of the applicable EU law, the Retained EU Law (Revocation and Reform) Bill 2022 has suggested something much more drastic.


What is the Bill proposing?


The Bill proposes to remove all applicable EU legislation in one fell swoop. The ‘sunset clause’ within the Bill has the effect of eradicating all such laws by December 2023, which can be extended to June 2026 if needed.


EU retained law in the UK refers to Regulations implementing EU law, or laws contained within Acts which have been implemented from Regulations. Acts are not affected by this bill, as they are legal instruments moulded by UK lawmakers.


How does this affect employment law?


Two key acts in employment law are not affected, notably the Employment Rights Act 1996 and the Equality Act 1996. However, much of UK employment law is focused on Regulations containing important worker rights. Examples of these include:


  • The Working Time Regulations
  • The Transfer of Transfer of Undertakings (Protection of Employment) Regulations, commonly known as ‘TUPE’
  • The Agency Workers Regulations
  • The Fixed term Employees Regulations


Expectedly, the UK will want to remove some EU law which is not applicable to our country or is considered outdated. However, some Regulations contain important principles which are arguably irreplaceable. For example, rules in relation to rest breaks, the 48-hour working week, and entitlement to paid annual leave is all contained within the Working Time Regulations. Can this simply be scrapped without replacement of similar or identical principles?


Furthermore, the TUPE Regulations protect workers’ terms and conditions of employment one they are transferred from one company/service provider to another. They also prevent dismissal due to such a transfer. It seems implausible that the fundamental principles of TUPE law will be entirely scrapped, as companies will have too much power to overhaul their workforces following a transfer. Naturally, workers would be much more hesitant to transfer and subsequently, acquisitions for companies will run less smoothly.


What options does the Government have?


There are a few options arising from this bill:


  1. The most drastic option would be to revoke all law without new legislation in its place. This is also the least likely option as key protections would not be preserved, the issues associated with such are outlined above.


  1. A second option is to reinstate all the current Regulations as UK law, therefore removing the interpretive effect of EU legislation. It is doubtful that this will also happen as there will likely be changes made to the existing rules.


  1. The final option is to replace all laws with a ‘UK’ version. Therefore, EU principles could be brought into the replacing legislation, with necessary amendments or additions which the UK lawmakers would like to make. This appears to be a middle ground between the above two options.


What remains to be understood is what the process of passing the reforming laws will look like. One benefit of introducing this bill is that the normal lengthy process of changing all of EU-derived law is being bypassed. Instead, the sunset clause simply removes all EU-derived law by a specific date. However, it may be the case that new legislation will still need to go through the standardised process.


Ambiguity surrounding the Bill will be reduced in due course once more information is released by the Government. Nevertheless, we can expect some major changes to employment law in the upcoming years, which will place different compliance obligations on businesses.