The assault on EU workplace rights begins

Last week, the government published its Retained EU Law (Revocation and Reform) Bill in the House of Commons.

'The government’s Retained EU Law (Revocation and Reform) Bill, published on 22 September, takes a hatchet to employment rights derived from the EU, which have provided much needed protection for the last 50 years. All EU-derived subordinate legislation and retained directly applicable EU legislation is to be revoked automatically from the end of 2023. The only exceptions will be where areas are specified in regulations made by a minister or devolved authority.

’This means that, unless preserved by specific regulations, protections such as TUPE, the Working Time Regulations, regulations protecting atypical workers (such as agency workers) and certain health and safety regulations, will potentially cease to apply. Various areas of protection from discrimination will also potentially cease to apply – such as some of the protections for equal pay for work of equal value. This includes not only where legislation was implemented under specific powers in the European Communities Act 1972, but also wherever legislation was introduced for the purpose of implementation of EU obligations – as was the case with some parental leave rights.

'The mechanism in the European Union (Withdrawal) Act 2018 for giving supremacy to EU law, which has so far been retained, over previous domestic law, is to be abolished. The ‘general principles’ for giving effect to retained EU law – the means which enabled EU law to be enforced effectively – are also to be abolished.

'Such retained EU law as is kept after the end of 2023 will be known as ‘assimilated law’. There is then a mechanism to remove any residue of EU case law still being binding on appeal courts. There is also a mechanism to allow lower courts or tribunals, or Law Officers, to make ‘references’ to higher courts or tribunals to enable departure from retained EU case law. Borrowing from the Human Rights Act, there is also facility for ‘incompatibility orders’ to be made where retained EU legislation is incompatible with domestic law.

'Every effort is being made to expunge the concept of EU law, and its effect, from the British legal system. The year 2024 will be like a ‘Year Zero’ for rights derived from EU law.

'You might expect that, in ‘taking back control’ and upholding the sovereignty of parliament, the powers to decide what EU law is kept (and ‘assimilated’) would rest with parliament. Unfortunately, you’d be wrong. The power to decide which retained EU law to keep after the end of 2023 is exercisable by a ‘relevant national authority’ – and that means ministers and/or devolved authorities.

'Ministers and devolved authorities are also to have the power to ‘restate’ ‘secondary retained EU law’ – which includes retained EU law which is not contained in an Act, or which was inserted into an Act by secondary legislation. They will also have the power to revoke secondary retained EU law where they consider that the overall effect of the changes ‘does not increase the regulatory burden’, or to ‘update it’ to take account of ‘changes in technology’ or ‘developments in scientific understanding'.

'And to cap it all, a minister will be able, by regulations, to make ‘such provision as they consider appropriate in consequence of this Act’ – on the face of it, carte blanche to do exactly as they choose.

'The European Union will no doubt pay close attention to the possible impact on ‘trade and investment’ of any failure to preserve pre-Brexit labour standards for the purpose of the ‘level playing field’ provisions of the UK-EU Trade and Cooperation Agreement. But that is likely to be of no assistance to workers and their trade unions, particularly with the non-regression provisions creating no rights justiciable by individuals.

“The Conservatives’ 2019 election manifesto promised an Employment Bill to ‘protect and enhance workers’ rights as the UK leaves the EU, making the EU the best place in the world to work’. No chance of that, and there never was. The Retained EU Law (Revocation and Reform) Bill abolishes EU-derived workplace rights, with salvation only available at the whim of the new Secretary of State for Business, Energy and Industrial Strategy, Jacob Rees-Mogg.'

By Richard Arthur, Head of Trade Union Law, Thompsons Solicitors’''

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