After this transition period, the UK has still retained many of the existing EU laws and regulations, which have been incorporated into UK law through the EU Withdrawal Act 2018. This means that most of the EU-derived laws have been converted into UK law and will continue to apply in the UK, unless they are repealed or amended by the UK government.
In September 2021, the government announced the review into retaining EU law (REUL) to determine which departments, policy areas and sectors of the economy contain the most EU Laws. In June 2022, the government published the initial outcome of this review which produced an authoritative catalogue of 4,917 REULs.
Out of the 4,917 REULs, we now know that 3,198 are planned to be unchanged, 673 to be amended, 365 repealed, 12 replaced and 75 have expired. The government has also recently announced it will replace the current ‘sunset’ clause in the bill, which means the mass deletion of EU laws will not go ahead as planned and provide some stability around workers’ rights. The only laws that are specifically relevant to employment law that will be repealed are:
The Community Drivers’ Hours and Working Time (Road Tankers) (Temporary Exception) (Amendment) Regulations 2006
The Posted Workers (Enforcement of Employment Rights) Regulations 2016
The Posted Workers (Agency Workers) Regulations 2020
Meeting the sunset clause deadline by the end of 2023 was always going to be challenging and it seems the government has quietly acquiesced to push through the really important areas of reform required, but this might simply be a stay of execution for those that had been previously identified.
What will be the future for worker protection?
The minister in charge of the EU Retained Law Bill, Kemi Badenoch, argued that the 2023 sunset clause meant “Whitehall departments had focused on which laws should be preserved ahead of the deadline, rather than pursuing the meaningful reform government and businesses want to see.’ The removal of the sunset apparently means officials are ‘freed up to focus on more reform of REUL, and do it faster.’ The government has consistently stated that the Whitehall ‘blob’ was resistant to change and in need of a sharp deadline to work to, and is now blaming civil servants for using that self-same deadline to block reform.
The Law Society has welcomed the government’s rethink on the Retained EU Law Bill, saying the change of course will be ‘good for business’ as it will provide clarity around the various laws that govern how they can operate as well as prevent any ‘bad’ laws being implemented in haste.
There are also some aspects of retained EU law where the government is proposing to make changes such as reducing elements of the Working Time Regulations, a commitment to reforming the government’s better regulation framework and a limit on the length of non-compete clauses in employment contracts.
The government has therefore set the principles for the future of regulation so that necessity, proportionality, competition and the consideration of how regulation affects economic growth will be a good manifest for devising well planned legislation. Various employer organisations have welcomed the government’s proposals such as the Recruitment & Employment Confederation, which stated that there is now clarity for employers and workers over the timeline for the Retained EU Law Bill and that areas of law such as the working time directive need to be reviewed.
The end of EU worker regulations in the UK?
There is an indication that it will not be the end of the saga, as the government is expected to introduce secondary legislation which could amend or replace EU laws using a ‘fast-track process’ that attracts less scrutiny in parliament. Only the supreme court could depart from established EU case law in the original legislation; the government is now giving itself a permanent power to amend REUL and is not putting any commitment to consultation or proper parliamentary scrutiny towards the bill.
This means any future government could use these powers to water down protections, as the bill does not allow reform to mean raising standards, which could leave workers without established rights and employers dealing with employment matters without a clear and reasonable framework to work from.
Although the REUL will be the main talking point around employment law until the end of 2023, a general election after this date could witness a Labour government in power, which has outlined a new deal for working people. Through this deal, Labour want to strengthen the protections afforded to all workers by banning zero-hours contracts, outlawing bogus self-employment, and ending qualifying periods for basic rights, which leave working people waiting up to two years for basic protections. This will include unfair dismissal, sick pay and parental leave, giving working people under Labour, rights at work from day one. This ‘new deal’ would see a far bigger increase in workers’ rights and one that businesses will have to prepare for, plus one that will be dependent on UK voters rather than European Union, which has been the main proponent of workers’ rights over the last fifty years.