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

On 22 September secretary of state for business, energy and industrial strategy (BEIS) Jacob Rees-Mogg introduced a bill to put an end to EU-based legislation the UK has kept since the Brexit.

To be completed by 31 December 2023, the Retained EU Law (Revocation and Reform) Bill 2022 could affect UK working time regulations, the right holiday pay, aspects of discrimination law and TUPE transfers.

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Simon Jones, director of HR consultancy Ariadne Associates, said the reforms could cause a headache for employers.

He said: “I’m sure most businesses and HR professionals have bits of employment law they’d like to see changed, but to announce that many employment laws, which businesses and employees have been familiar with for years, are to be scrapped in just over a year is not likely to help businesses who are struggling to recruit and retain staff or improve employment relationships more generally.”

A more considered approach to regulation changes would be preferable, he added: “At a minimum we urgently need some clarification about which, if any, regulations will be retained or replaced with domestic equivalents so that businesses can plan effectively.”

Alan Price, CEO at BrightHR, said the changes are expected to affect almost every area of business and society, yet many of the current laws could remain the same.

In some cases, laws in the UK introduced while the nation was part of the EU went further than EU requirements.

Price pointed out: “For example, the EU mandates all workers to get at least four weeks’ paid annual leave, but the UK requires employers to provide at least 5.6 weeks’ paid annual leave.

However, this could now change.

He said: “The key difference now is that the UK will have flexibility to set entitlements as it wishes, so could, theoretically, set a new minimum entitlement to two weeks’ paid annual leave, lower than the EU’s threshold.”

Caspar Gly, King’s Counsel and barrister trial in employment and sports law at Cloisters, said the bill aims to reform, in less than a year, more employment law than the UK has in the last 50 years.

In a Twitter thread he wrote: “No one knows what will be retained by deliberate regulation and what will go on the bonfire. However, the European Trade and Cooperation Agreement provides that if changes to UK employment law have a material effect on trade or investment then following defined procedures, measures can be taken by the EU to rebalance their effect (tariffs, etc).”

Richard Arthur, head of trade union law at Thompsons Solicitors, called the bill “the biggest, and most catastrophic, demolition of workplace rights in generations,” stating that it will make 2024: “Year Zero for workers’ rights.”

Arthur expects the bill to face fierce opposition as it heads through parliament.

Speaking to HR magazine, he said: “Many employers are likely to want to keep many EU-derived protections, such as in relation to TUPE. And no doubt the EU will be keeping a close eye from the perspective of the UK’s obligations under the UK-EU Trade and Cooperation Agreement.

“We can’t say at this stage whether other reforms will be put in place to protect things like holiday pay.”