Under the “Brexit Freedoms Bill”, introduced by Liz Truss during her short time as Prime Minister, all EU law must either be reviewed and transferred into UK law, amended, or allowed to expire (which the Bill itself refers to as being “sunsetted”) by the end of 2023.
UK Ministers can currently postpone the sunset date of EU laws, but only until June 2026, the 10th anniversary of the referendum which led to the United Kingdom choosing to leave the EU.
However, opposition parties are fighting back. The Scottish National Party has proposed some 50 amendments and Labour is calling for the retention of workers’ rights specifically around annual and parental leave. Labour has also mooted a “sunrise” clause, meaning EU law would remain unless specifically amended or repealed.
With around 2,400 pieces of retained EU law, covering everything from the environment to data privacy, food standards and consumer rights, the Bill could have serious implications for everyone.
While we don’t know which employment laws will disappear and which will be restated or amended, some predictions can be made.
Four likely candidates for change are: TUPE (Transfer of Undertakings (Protection of Employment)), the Working Time Regulations, discrimination law and the General Data Protection Regulation, better known as GDPR.
TUPE was “gold-plated” by the government in 2006, when its protections were made wider than the EU required. This makes re-statement of TUPE likely, but the UK Government may seize the opportunity for simplification. For example, consultation provisions may be brought into line with conditions for collective redundancy consultations.
Like TUPE, the Working Time Regulations will probably be restated but in an amended form. Employees could, for example, lose the legal right to carry over holiday entitlement to the following year if they are sick during a period of annual leave.
The UK could also go back to the previous way of calculating holiday pay, using basic wages only rather than including extras like bonuses. However, a recent Supreme Court case found that employees who only work for part of the year (term-time, for example) are entitled to the same holiday pay as employees who work all year round. I don’t anticipate this changing.
UK discrimination laws have been around for 50 years, and no-one is arguing to abolish protected characteristics. However, this may be seen as a chance to cap discrimination compensation in the same way as unfair dismissal, after a previous attempt to do this was blocked by EU law. Watering down the protection for part-time workers could also be an option.
The General Data Protection Regulation (GDPR) can’t automatically be repealed as it is primary legislation, but in October the Secretary of State for Digital, Culture, Media and Sport, Michelle Donelan, said that this law is going to be abolished and replaced. We’ll need to wait and see how far any replacement deviates from GDPR. However, it is worth noting that most UK companies will still need to comply with GDPR rules if they have any form of business operations in the EU.
An element of the unknown in this equation is the Prime Minister, Rishi Sunak. He may decide on few changes, with the aim of achieving stability. It’s also possible the Bill will be watered down as it moves through Parliament, or that sunset deadlines could be extended due to opposition pressure.
If the timescales extend until we have a general election, then all bets are off, as a new government could take a very different approach altogether.
Robin Turnbull is director and accredited specialist in Employment Law at Anderson Strathern