More uncertainty lies ahead for employers and employees ahead of a crucial Brexit deadline, writes KAREN HARVIE
What with the range of crises currently making life difficult for us all it would be easy to forget the one big elephant in the room which has been with us for a few years now. The conflict in Ukraine, cost of living issues, energy prices, rising interest rates and inflation are hogging many of the headlines, but Brexit and its ramifications are still having an impact and are likely to do so for some time.
For businesses, barriers to trade and attracting enough workers (a particular problem for industries such as hospitality and agriculture), have already proved to be damaging.
However, there is another ‘biggie’ on the horizon which could well cause more confusion in an area of law which is already complex.
One key reason given for leaving the EU was the chance to take back control of laws and the UK Government is looking to introduce the Retained EU Law (Revocation and Reform) Bill 2022 as part of the process.
This is a sunset bill revoking almost all retained EU law on 31 December 2023 unless assimilated before then. Now, the first thing to note is that there is power to push the date on a bit which looks a distinct possibility given the almost impossible task of reviewing thousands of pieces of law in a year.
Retained EU Law is the snapshot of EU Law in force in the UK at the end of the transition period and this includes case law. This was converted to UK law to give some certainty at that point as to what the law was going forward.
The UK Government intends to assimilate the EU law it likes by asking government departments to preserve the laws that matter to them.
It is important to bear in mind that this will be done without carrying out impact assessments either on individual changes as decisions are made to assimilate certain laws or indeed the grand burning of the left overs at the end of next year.
In addition, there will be no meaningful parliamentary scrutiny although the committee with oversight of impact assessments has flagged the one for the Bill as red, as in not fit for purpose.
Now, this all matters when it comes to a critically important subject area for both employers and workers – Employment Law.
A significant number of our familiar employment laws are derived from the EU not least:
- the right to paid holidays
- case law as to what is included in “pay”
- case law as to how to calculate workers’ holiday pay
- the law relating to minimum rest breaks and maximum working time
- statutory maternity pay
- TUPE regulations
- Specific worker protection may disappear if the agency workers, fixed term workers and part time workers regulations are not assimilated
Of course, the UK Government’s aim is to restore the sovereignty of UK laws, reduce existing burdens on business and boost economic growth.
But, and it’s a pretty big but, the laws we currently operate under, in whatever sphere, have been developed over many years and are there for good reasons. Indeed, whilst the government may perceive laws in the area of employment as a hindrance to business, arguably they have proved beneficial to both employers and employees and ultimately led to a healthier relationship between them.
The UK Government has opened itself to a world of challenge and criticism with this proposed bonfire of red tape, with opponents, both political and subject experts hinting that idealism rather than practicality is the key driving force behind the Bill.
When it comes to employment rights, it would not be unreasonable to suggest that it threatens workers’ rights and undoubtedly creates uncertainty for businesses.
Some might argue it is also a reckless action by government and provides unprecedented powers to ministers to personally decide which laws stay and which go.
A week is a long time in politics never mind a year and given the current pattern of u-turns by the UK Government it would be unwise for businesses to try and second guess what might happen.
The employment law landscape will remain uncertain over the coming months whilst the politics plays out but we know what we know, and businesses should be in no doubt they still require to understand and comply with the current laws, whatever may come next.
Karen Harvie is a senior associate in employment law at Aberdein Considine
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