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Government sets out employment law reforms

The UK government has announced it will ensure EU equality and discrimination laws are reinstated before they expire at the end of the year, but other EU laws deemed to be a “burden” will now be amended.

According to Sky News, equality elements expected to be kept include maternity law protections for returning mothers and the single source test, which allows for the determination of equal pay claims between workers in different organisations. 

The single source test was just one of a number of pieces of EU law due to be abolished or diluted under the Retained EU Law (Revocation and Reform) Act, which unions and legal representatives were worried would lead to an erosion of workers’ rights.

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But the government yesterday put a statutory instrument before Parliament to avoid this. 

Sayeem Ahmed, managing director of employment law consultancy, Neathouse Partners, said: “In retaining these laws, the UK government has chosen stability over the bold strokes of legislative change that some had anticipated post-Brexit.”

Speaking to HR magazine, Jim Moore, employee relations expert at HR consultancy Hamilton Nash, said the news would be welcome to employment lawyers and HR practitioners.

He said: “What’s not often talked about, is that if EU laws had been erased en-masse, 50 years of useful case-law for tribunals to refer to would have been thrown out of the window – leaving a massive legal gap.”

Alex Mizzi, legal director, Howard Kennedy, said: “EU principles around discrimination and equal pay are so well bedded in, and are so well understood, that I don’t think there was any appetite from government to row-back on these, so in employment law I think there will be very little divergence going forward.

Working time, holiday pay and TUPE at risk in latest EU law reforms

“Whether this is in-line with the stated aims of Brexit, however, is another matter. But there would have just been too many complex decisions for government to have been made if case law had been removed entirely.”

While equality protections will now happen, the government yesterday (8 November) confirmed it would seek to slash £1 billion of red tape it said were derived from “burdensome EU rules".

It said amendments to several retained EU laws would now be made to simplify annual leave and holiday pay calculations under the Working Time Regulations.

Changes to consultation requirements under the Transfer of Undertakings (Protection of Employment) (TUPE) will also take place.

The specific details of these amendments have not yet been released.

Retained EU Law repeals are simply an administrative clear-up

Moore speculated that holiday pay calculation amendments could return to the percentage method pro-rata calculation that businesses previously had used to determine holiday pay before it was deemed illegal by the Supreme Court in the 2022 Brazel v Harper case.

The case meant employers could no longer multiply the hours someone worked by 12.07%, then by the holiday rate to determine holiday pay.

Adam Williams, partner in the employment group at DHM Stallard, questioned whether these red-tape reducing amendments tackled EU-made complications.

Speaking to HR magazine, he said: “While the Brazel case might be an interpretation of the Working Time Directive, it was a UK case in a UK court, looking at UK interpretations.

“The UK’s own TUPE regulations are actually more burdensome than the EU’s minimum requirements, so again, simplifying them is to remove a burden that is not actually EU-derived.”