The Retained EU Law Bill - not disappearing into the sunset just yet


The Government announced last month that a key aspect of the Retained EU Law Bill is to be dropped - but some uncertainty remains.

The most controversial part of the REUL Bill was the sunset clause, which stated that all EU-derived regulations which the Government did not specifically legislate to keep would be repealed automatically at the end of 2023.  Potentially, this included vast swathes of employment law, including the Working Time Regulations, TUPE and Agency Worker Regulations (among many more).   This scorched-earth approach to lawmaking (and the Government's failure to announce in advance which legislation it would keep) was predictably unpopular with businesses and trade unions alike.   In a significant U-turn, the Government announced last month that this aspect of the Bill would be dropped.  Instead, the Government will need to take active steps to repeal EU-derived regulations. 

This offers some certainty for businesses, but other (perhaps just as far-reaching) aspects of the Bill remain, including abolishing the supremacy of EU law, removing general principles of EU law from domestic law, and allowing UK courts to depart from EU caselaw.  EU caselaw, often based on the general principles of EU law, has been responsible for many key employment law developments, such as the requirement that holiday pay reflects normal pay (including overtime, commission, etc.).  If passed, the Bill will still create uncertainty in many areas of employment law. 

A (small) change is going to come...

At the same time, the Government announced reforms to TUPE and the Working Time Regulations.  For all the fanfare of the press release, the reforms are strikingly limited. 


The Government is removing the requirement to consult with elected representatives for businesses with fewer than 50 staff and transfers affecting fewer than 10 employees.  In these cases, the transferor/transferee may consult with the affected employees directly.  Although welcome, the proposed TUPE changes will have a fairly modest effect, effectively extending the existing exemption for micro-businesses to slightly larger employers and transfers involving a small group of staff. It's notable that the Government hasn't grappled with more contentious aspects, such as the (currently very limited) ability of employers to change transferring employees' contract terms after a transfer. This would have a far greater impact. The fact that it's not on the table suggests that the Government is wary of triggering the EU's right (under the UK's exit deal) to impose sanctions if the UK departs from EU law in a way which affects trade and investment. 

Working Time:  

The Government proposes relaxing the rules on recording working time (although this will still be needed for some purposes) and making some reforms to holiday entitlements, including allowing rolled-up holiday pay and removing the distinction between "EU" holiday entitlement (4 weeks per year) and the additional 1.6 weeks required under UK law.   These reforms will be welcomed by many businesses, particularly those which employ casual workers or those with irregular working hours. 

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