If you decide to tear down your home, then it is a good idea to find somewhere else to live first – so it is with employment law.
Before you take away workers’ rights to the same pay when on holiday as at work, before you abolish the same right as used by tens of thousands of women in supermarkets to claim equal pay against men, before you abolish the right of part-time workers to be treated the same as full-time workers on a pro rata basis, before you take away the obligation to make health and safety assessments – then these rights, and a wide swathe of other rights, must be replaced first.
That is the central flaw of the government’s Retained EU Law Reform and Revocation Bill. The bill sets a long stop so that all EU-derived rights made under secondary regulations are turned off by 2026 at the latest – I’ve set out an edited highlights
reel above. The full roll call of such regulations includes business transfers and a swathe of rights and obligations running like a stick of rock through employment law. Rights which workers rely on and pursue before tribunals in their hundreds on a daily basis.
The government says it will not turn off these regulations but preserve them – that it does not wish to strip workers of their rights. So far, maybe so good. But the government does not appear to understand the effect of other clauses in the bill which will create widespread employment law uncertainty and an interregnum of no employment rights, as an under-resourced and backlogged tribunal limps forward to replace abolished law with new case law, subject of course, to expensive and delayed appeals.
While commentators and lawyers have widely understood the effect on regulations (you can cite them and count them) there has been a failure to understand the effect of clauses of the bill that turn off three principles of EU law that put the flesh on the bare bones of many employment rights.
The three principles of EU law that are turned off from the end of 2023 are direct effect, supremacy of EU law and the general principles of EU law. So what? This is all EU law that the government wants to depart from? Of course, we at the Employment Lawyers Association, which consists of about 6,000 employment lawyers who specialise in employment law, have no political view. If the government wants to change the law then that is a policy choice for government and we do not enter that sphere. This is different. The government is not just changing the law. It is, we suspect unknowingly, laying waste to large areas of employment law, replacing them with nothing but a wasteland able to grow nothing but uncertainty and the thick weeds of litigation.
The effect of abolishing these three principles is, even if the government were to retain every single regulation made from EU law since 1972, to strip dozens of regulations of their well understood and settled meaning from 1 January 2024.
Let me return to the examples I set out above. Holiday pay, when it is not affected by the EU three principles, does not guarantee the same pay on holiday as at work – for instance, all overtime is ignored and only contractual pay is included. In equal pay it is the EU treaty and not the provisions of the Equality Act 2010 that has allowed those women supermarket workers effectively to claim the same pay as men.
Gone, unless the government examines every single case involving direct effect, every single case where EU supremacy has been applied and every case where principles of effectiveness and equivalence apply. The truth is no one knows the width of the case law, certainly not the government. None of these case law-derived rights are recorded on the EU law dashboard.
It would take a very large and well-resourced team of lawyers analysing every single regulation of every single set of regulations to understand how it has been affected by EU law. Alarmingly, the government has not considered that its bill will also affect the meaning of primary legislation such as the Equality Act 2010. This is work which has not been done. The government literally does not know what it is doing because it has not examined the effect of the bill. Looking at the list of regulations affected, it is likely that it will disadvantage the disproportionate number of women who work in areas protected by these regulations, such as part-time workers. This goes largely unrecognised in the equality impact assessment.
We are alarmed and concerned that the government does not seem to understand that the effect of the bill will be to create a new, uncertain employment law landscape on 1 January 2024, where employment law is stripped of its settled understanding and becomes uncertain. Any functioning legal system needs a degree of certainty and that will be removed in swathes of laws and cases.
It is true that domestic courts will fill the gap, eventually. Let me take the example of the right to carry over holiday pay when on sick leave – that litigation took from 2002 to about 2015 to resolve. Now we understand from the three EU principles that when a worker is ill, that worker can carry over holiday for 18 months and then will lose it. What of carry-over from 1 January 2024? There is nothing in the regulations about the carry-over of leave when sick. Is the effect of the government’s action that it now abolishes the right of any person unable to take holiday due to sickness? Or does it remain? If so through what mechanism? If so, for how long can one carry over?
The one known effect of the bill is that it will affect an unknown group of rights. The ELA asks that before the bill is considered further that the government audits employment law and employment cases. Before another legislative step is taken parliament needs to know what it is doing. Once it does, then the political debate, from which the ELA will stand back, can begin.
Caspar Glyn KC is deputy chair of the Employment Lawyers Association
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