Is employment legislation about to step back in time?

You may be forgiven for thinking that we have stepped back in time to the 1970s, with 2022 bringing political turmoil, economic uncertainty, rail and postal strikes and rumours of imminent energy blackouts.

Whilst remembered for all of the above, the 1970s was also recognised more positively for turning the tide in employment legislation with the introduction of discrimination and dismissal laws designed to cement workers’ rights, but is employment legislation now about to step back in time?

The Retained EU Law (Revocation and Reform) Bill (the Bill) published on 22 September 2022 has been marketed as “perhaps” the most significant piece of employment legislation since the 1970s, but what does this very unassumingly titled Government Bill cover, and what does it actually mean for workers’ rights?

What is the Bill designed to do?

Despite appearances caused by its rather bland title, the Bill is of critical importance because it is designed to allow the UK Government to redesign (or remove completely), the EU laws that are still retained in UK ‘domestic’ law following Brexit and the UK’s departure from the EU on 31 January 2020.

The Bill marks a key milestone, as on 31 December 2023 it will automatically repeal any EU law that has not been deliberately saved and enshrined into ‘domestic’ UK law by Parliament. (This date can however be extended to 31 December 2026 if necessary.)

The Government’s position is that this will enable it to create regulations that are ‘tailor-made’ to the UK’s own needs, whilst scrapping parts of EU employment law that it considers are no longer needed in the UK. The aim is to make the UK more competitive, prompting inward investment and economic prosperity.

Which workers’ rights may be lost?

Whilst economic prosperity, on the face of it, would be a positive outcome of the Bill, the cost of this benefit could mean saying ‘au revoir’ to the following workers’ rights, all which derived from EU laws:

• The 48-hour limit on the average weekly hours of work provided for under the Working Time Regulations 1998, regulations which have been stated by a former cabinet minister to be “overly technical”.
• The right to paid annual leave and to receive “normal remuneration” for this, stemming from the Working Time Regulations 1998 and EU case law – although any proposal to curtail this right is likely to receive significant backlash.
• Protection for employees during a relevant transfer caught by the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).
• Protection for part-time and fixed-term workers.
• Protection for agency workers.

In addition to the above, there may be an impact on the number of businesses required to report on their gender pay gap, with the definition of small and medium enterprises (which are currently exempt from reporting) being increased to those businesses with less than 500 employees as opposed to less than 250.

It is not clear whether the current EU law will act as a base starting point for new laws to build upon, or whether the current position will be completely disregarded in favour of new principles.

The Bill has created concern amongst the trade unions, who have expressed a nervousness that future changes pose a threat to workers, in particular to women, with one union spokesperson stating the Bill may “turn the clock back for women at work”.

There may also be issues in relation to rights already incorporated into workers’ contracts, and whether these will simply fall away when the new ‘sunset’ provision operates on 31 December 2023, or whether the drafting of specific contracts would protect these rights and impose contractual obligations on employers, which would require a separate consultation exercise to remove.

In January 2021, the then Government promised to safeguard employment rights and stated that there would not be a “bonfire of rights”. While it is hoped that a red pen will not be taken to the statute books, it is impossible at this stage to tell exactly what rights the Government will choose to retain, and which will quietly fall away at the end of 2023.

It is certainly a tall order for the Government to unpick and re-legislate more than 50 years of employment law over the next 14 months. We can only hope, in these interesting but uncertain times, that we are not going to be transported back to a pre-1970s backdrop of employment law and regulation.