The Government has recently reversed its position on how EU law should be treated following the end of 2023. Before its announcement on 10 May 2023, it was believed that EU legislation which had been implemented into UK would cease to be law in the UK after 31 December 2023 unless it was expressly stated that the law would be retained.
This is no longer exactly the case. From 31 December 2023, the special status of EU law will cease, and the retained EU law will be known as assimilated law unless it is expressly repealed. The Bill will be amended to include a list of the EU laws that it intends to revoke on 31 December 2023 and anything not on that list will continue to be binding law.
The pieces of legislation which will be revoked on 31 December 2023 are:
- The Community Drivers’ Hours and Working Time (Road Tankers)
- The Posted Workers (Enforcement of Employment Rights) Regulations 2016
- The Posted Workers (Agency Workers) Regulations 2020
These are quite specific and industry targeted pieces of legislation and therefore will not affect employment law on a large scale. Therefore, businesses can at least feel that there is much more certainty for 2024 than if the government did not abandon the sunsetting clause.
Further pieces of legislation can be revoked at a later stage however, and there is also provision to allow EU law to either be restated or reproduced so that we have an equivalent domestic legislation which is not derived from EU law. This in theory will allow the government to keep elements of legislation which work well for the UK and remove any element of EU legislation which may be viewed as ambiguous or unfavourable for the UK. A new deadline of 2026 has been set to complete the process of reviewing EU derived legislation and to make any necessary amendments.
The Government also announced that it intends to tweak more commonly used pieces of law (the Working Time Regulations and TUPE regulations) as part of its plan to remove what it views to be unnecessary red tape inherited from the EU. The proposed changes to these two regulations are as follows:
Working Time Regulations
There are several proposed changes to the Working Time Regulations as we currently know them:
- To remove the separation between holiday entitlement under EU law and national law and create one holiday entitlement.
- To allow rolled up holiday-pay. Rolled up holiday pay is where workers are paid their holiday pay each month regardless of when they take the holiday. The standard rate of 12.07% of their wages would instead be added to the wages to cover their holiday pay and is a much simpler approach than looking at an average wage for the previous 52 weeks worked. This also means that when they do take annual leave, their pay would be lower as they would not receive a whole day’s pay for the day they take as holiday.
- The government has also proposed to remove the requirement for businesses to keep working hours records for its workforce. This removes an administrative burden on employers to keep records of daily working hours and the requirement to have a system in place to record this information.
TUPE
- The government has announced that it intends to remove the requirement to consult with appointed representatives where there are fewer than 50 employees in the business and fewer than 10 transferees (employees being transferred).
This means that where a business has between 10 and 49 employees, of whom 9 or fewer are transferring, the business will be exempt from the collective consultation rules. Due to other TUPE rules which are remaining in place, this change would only be able to be used when there is a transfer of part of the business and not the whole business.
We do not have a timetable for these changes coming in but as they will not require any primary legislation, they could be introduced fairly quickly when Parliament is ready.