Well, I am sorry to tell you but it may just about to get even worse.
The government’s Retained EU Law Reform and Revocation Bill, if it becomes law, is going to turn off vast swathes of employment law that are derived from Europe unless the government acts otherwise.
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Now, the government says that it will make sure that it will keep the regulations on which we advise every day – no abolition of holiday pay, of transfers under TUPE, of fixed-term or part-time workers’ rights or parental leave rights they say because the regulations will stay.
The government says that it will not turn these regulations off and 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 the other clauses in the bill which will create employment law uncertainty and a huge pool of HR advisors unable to advise as to what any of the regulations mean.
This is because the bill also tuns off three principles of EU law at the end of 2023. Lawyers call them '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 specialising in employment law, have no political view. If the government wants to change the law then that is a policy choice for government.
But what if I told you that there is nothing in the regulations that covers a worker’s right to get overtime in their holiday pay or other normal increments.
That is all derived from the three principles. When these are turned off what does that mean for holiday pay. Well, let me tell you as a KC who is an acknowledge UK expert in the holiday pay field. I don’t know. I just don’t know.
It will be uncertain – take away the three principles and you replace the settled understanding of employment rights on which you advise your clients daily, if not hourly.
Instead government risks abolishing a settled understanding of rights, 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 government was to retain every single regulation made from EU law since 1972, would be to strip tens of regulations of their well understood and settled meaning from 1 January 2024.
The trouble is that the three principles exist in a huge amount of case law and government has not carried out the assessment to see its effect.
Sure, the 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.
I know that you will advise clients, 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 carry-over of leave when sick. Is the effect of 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?
Again, I don’t know and neither does the government.
The Employment Lawyers Association 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 ELA will stand back, can begin.
Caspar Glyn KC is deputy chair of the Employment Lawyers’ Association
