The UK Government has recently announced a number of changes which it intends to make to legislation affecting key areas of Employment Law.
Applicability of EU Law in the UK beyond 2023
On 10 May 2023, the UK Government announced that it no longer intended to move forward with the provision of a “Sunset Clause” in the Retained EU Law (Revocation and Reform) Bill. This Bill originally was drafted with the ultimate intention that almost all EU law would be automatically revoked before 2023 came to an end, unless the UK Government expressly acted to preserve it in the form of secondary legislation and statutory instruments.
The Bill, as drafted, raised a number of concerns in relation to the potential impact that the revocation of all EU law would have on the UK legal sector and most notably on the impact to employers and employees alike. A notable example provided for by EU law which has seen widespread implementation in the UK since it came into force is the Transfer of Undertakings (TUPE) Regulations 2006. The Bill therefore would have required the UK Government to make express provision that it would remain in force.
However, it has been announced that this “Sunset Clause” is being inversed so as to provide that all EU law will remain binding on the UK unless the UK Government expressly provides that its intention that it will not be binding.
The UK Government have also now issued the list of EU law which it intends to no longer be binding from 31 December 2023. No major EU law has been announced as being repealed with the exhaustive list including The Community Driver’s Hours and Working Time (Road Tankers) (Temporary Exception) (Amendment) Regulations 2006, The Posted Workers (Enforcement of Employment Rights) Regulations 2016, The Posted Workers (Agency Workers) Regulations 2020.
The Employment Lawyer’s Association (“ELA”), in November 2022, addressed the House of Commons BEIS Select Committee on the potential impact of the inclusion of the Sunset Clause. Our Jennifer Sole, on behalf of ELA, presented the findings of ELA’s Consultation and Working Party. For further information on this, please see our article addressing the same here: Jennifer Sole gives evidence to Parliament Select Committee (curzongreen.co.uk).
Employers and employees should pay particular attention to the Government’s announcements as to what EU law it intends to revoke in order to keep up to date with the rights available to and obligations imposed on them.
The Working Time Regulations
The UK Government has also announced its intention to implement a triad of changes to these Regulations.
Firstly, it intends to combine ‘normal’ holiday leave with ‘additional’ holiday leave, creating a singular entitlement available to employees. Whilst there has not been an express confirmation yet, this potentially has an impact on how an employer is required to calculate an employee’s annual leave entitlement. Secondly, ‘rolled-up’ holiday will now be allowed. This allows the employer to include an amount for holiday pay in an employee’s hourly rate within their contract. The third and final is that the record-keeping requirements for working hours has now been removed, alleviating (in theory) an administrative burden on both employers and employees.
Employers will no longer be required to consult an employee’s appointed representatives when they employ below 50 employees and no more than 10 of those employees are transferring to the new business.
The UK Government has expressed its intention to restrict the amount of time by which a restrictive non-compete clause, specified in an employee’s contract, will be able to apply. The Government has proposed that the duration should be limited to three months after the termination of employment. Employers should keep abreast of any developments in this regard, especially when a final decision is made by Parliament, as they will need to ensure that their standard contracts of employment are up to date to reflect these new changes. This might require consideration of how an employer implements restrictive covenants in their contracts.
If you are an employer or employee needing employment advice, please do not hesitate to contact our specialist employment team at email@example.com or by telephone.