REWARD
Review, retain, repeal: what will employment law look like by the end of 2023?
Danny Done, managing director of Portfolio Payroll, explains what the introduction of a new Bill could mean for the future of employment law
E mployees’ entitlements and the government’s introduction of the Retained EU Law (Revocation and Reform) Bill on 22 September 2022. This new piece of legislation requires government departments to review, then retain or replace all European Union (EU) derived law. Any laws which aren’t formally retained will automatically expire employers’ legal obligations are all now under review, following on 31 December 2023. As such, the employment law landscape could look drastically different by the end of 2023. Since the UK is no longer in the EU, there’s no requirement to keep the laws as they are. Unless the government takes proactive steps to keep them, any existing pieces of law will fall away on 31 December 2023. This date can be extended to 23 June 2026 for some pieces of law, to give the government more time to assess whether they should be kept. As a reminder, some of the laws which are derived from the EU include the: l Working Time Regulations 1998 l Transfer of Undertakings (Protection of Employment) Regulations (TUPE) 2006 l Maternity and Parental Leave etc Regulations 1999 l Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 l Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 l Agency Worker Regulations 2010. What could this mean for employers? The upcoming review could mean changes are made to these laws, or it could be
that they go completely. For example, the government could, in theory, decide to remove the 48-hour weekly working limit or change the scope of paid annual leave rules. The UK will have greater flexibility to change employment laws, meaning employers will have to keep up to date with related announcements over the next year, and prepare for communicating and implementing changes. It’s impossible to predict the residual shape of employment law after the government has completed its exercise. It could be some time before we know the end product, especially if the government adopts the flexibility built in with the ‘sunset’ date. Assuming the government resists any temptation to completely eradicate existing laws and go back to the drawing board, the basic structure of entitlement and protection is expected to remain. However, there are some areas more obviously susceptible to change than others. Lots of our current interpretation of legislation comes from case law. When a judgment is made at the Employment Appeal Tribunal, Court of Appeal, Supreme Court or European Court of Justice, it creates a binding precedent which lower courts must follow. The law books aren’t automatically altered, but the principle becomes one that employers must adhere to, because an employment tribunal will be legally bound to apply it to future cases on the same topic. Despite the years that have passed since some of these judgments, the government hasn’t taken steps to rewrite legislation in many areas. This means that any new version of laws may operate to overturn binding case law.
It’s important to remember that employees’ legal entitlements are often written into contracts of employment, especially where annual leave is concerned. For example, should a contract state an employee is entitled to 5.6 weeks of paid annual leave, it becomes a contractual entitlement. Removing the law on minimum annual leave, or reducing it, has no effect on contractual entitlements. They will remain in place for existing employees and can only be changed with the employee’s agreement, unless there’s a strong business case for change and the correct procedure used to amend them, which is tricky. The UK government has already confirmed plans to remove current General Data Protection Regulation legislation and replace it with a ‘common sense’ data protection system. While exact details haven’t yet been released, it’s hoped it will be simpler and clearer for businesses to use. Similarly, regulatory exemptions are often granted for small and medium- sized enterprises, which the EU defines as having less than 250 employees. But, from 3 October 2022, the UK government extended the scope of exempt businesses to those with less than 500 employees. What effect this will have on organisations in the future remains to be seen. This is a time of change and concern for many business owners. It’s important to stay on top of ever-changing legislation to remain fully compliant. Failure to do so could lead to organisations following outdated laws, leading them to breach their legal obligations and withhold statutory entitlements, which, in turn, could lead to tribunal claims and widespread discontent. n
| Professional in Payroll, Pensions and Reward | December 2022 – January 2023 | Issue 86 46
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