28 October 2022 by Susanna Spencer

What’s next for EU employment rights?

In the aftermath of Brexit and in an increasingly tumultuous political landscape, the future for EU employment law within the UK is uncertain to say the least.

In this article we consider which employment laws are derived from the EU and how they may be affected in the near future.

What is EU employment law?

Many of the laws that provide protection to UK workers and employees derive from the EU, including:

  • Holiday pay – the right to 20 days’ paid holiday per year (in addition to the 8 UK bank holidays);

 

  • Working time – the right for all workers to rest breaks of 20 minutes after 6 hours and 24 hours every week, and the 48 hour weekly working limit;

 

  • Agency workers – the right for qualifying agency workers to receive equal treatment to substantive employees in relation to basic terms and conditions of employment;

 

  • Maternity/parental protections – e.g. the right to take maternity leave;

 

  • Equal pay – the right for men and women to paid equally for doing the same job;

 

  • TUPE – protecting employees’ terms and conditions following a change in employer or in/outsourcing.

In addition, where there is a conflict between UK and EU law, EU law currently takes precedent.

What has changed since Brexit?

Following Brexit, EU law in force as of 31 December 2020 was protected and became known as Retained EU law.

On 22 September 2022, the Retained EU Law (Revocation and Reform) Bill 2022-23 was introduced. The Retained EU Law Bill provides for revocation of Retained EU law on 31 December 2023 unless action is taken to preserve it.

There is an option for the Government to extend this timeframe until 23 June 2026, although this will only be where a specified piece of law is under consideration.

What will happen next?

Assuming the Retained EU Law Bill passes, all Retained EU law will cease to be in force on 31 December 2023 unless otherwise preserved.

From 1 January 2024, EU law will no longer take precedent when determining conflicts between UK and EU law.

Many are worried about the impact this will have on employment protections and vulnerable employees.

For example, would employees experiencing a TUPE transfer to a new employer lose the right to be consulted about the change, and be placed on lower salaries and less favourable terms and conditions? Could UK employee holiday entitlement decrease to 8 Bank Holiday days only? Could maternity rights and protections be diluted?

There are also concerns that the Government will not be able to cope with the amount of work required to make decisions on the swathes of EU law. This could lead to inadvertent failure to consider certain pieces of law at all, and ensuing chaos and confusion for courts, tribunals and employers.

Our predictions

In our view, it is likely that action will be taken within the required timeframes to legislate and protect the existing basic rights in place, given the benefits to workers and certainty for businesses.

However, we would not be surprised if there are deliberate modifications to certain areas. For example, there may be a desire to simplify complicated rules in calculating holiday pay for part-year workers that have caused confusion in recent years.

It is a worrying time for workers and a difficult and uncertain time for employers. We would recommend that care is taken to ensure ongoing compliance with the law as the situation unfolds.

If you require any assistance for your business with understanding and implementing EU employment law, please do not hesitate to get in touch with Susanna Spencer.

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