As the Retained EU Law (Revocation and Reform) Bill was previously drafted, it meant that all EU law was going to be automatically revoked at the end of 2023. That position is now being reversed so EU law will remain binding in the UK, unless it is expressly repealed.

The government has now published the list of EU based statutory instruments that it tends to repeal at the end of 2023. In terms of employment law, there really are no major changes at this time with just three very niche areas contained with the list.

However, of more significance to employers is the separate announcement of the governments intention to make some important changes to aspects of employment law now that the UK has left the EU in regards to Working Time Regulations and TUPE. Consultation on these proposals is now underway and in their consultation documentation, the government outlines that "we see opportunities for improvements following our exit from the EU. These proposals do not seek to remove rights, but instead remove unnecessary bureaucracy in the way those rights operate, allowing business to benefit from the additional freedoms we have through Brexit."

We've summarised the proposed changes below for easier reading:

Working Time Regulations

1) Merging ‘basic’ statutory holiday leave (20 days) with ‘additional’ holiday leave (8 days), to create one entitlement (28 days). This sounds relatively straight forward, but currently the basic entitlement and the additional UK entitlement can be treated differently for the purposes of calculating holiday pay. Although the government does not say this, it may result in the calculation of holiday pay reverting to the old method (i.e. excluding commission, overtime etc).

2) Allowing "rolled up" holiday pay - funnily enough something that has been unlawful under EU law for quite some time, this is where workers are not actually paid holiday pay while on holiday, but an additional payment is made during working weeks to reflect payment for holidays. This would likely be of most use to employers of zero hour workers, other workers working irregular hours and, potentially, term time workers.

3) Removing the requirement for record keeping under the WTR for working hours. Did anyone ever really do this in the first place.....

TUPE

Proposals here remove the requirement to elect employee representatives for the purposes of TUPE consultation for businesses when there are less than 50 employees and where TUPE transfers affect fewer than 10 employees. Businesses would instead consult directly with affected employees. The proposed change will be consulted on in advance of implementation.

It's also confirmed that the following regulations and the rights will be preserved:

• Maternity and Parental Leave etc Regulations 1999
• Paternity and Adoption Leave etc Regulations 2002
• Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000
• Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002
• The Agency Workers Regulations 2010
• Information and Consultation of Employees Regulations 2004
• Transnational Information and Consultation of Employees Regulations 1999
• WTR 1998 and the TUPE regulations (with the exception of the issues being consulted upon).

These are quite significant changes for employers to consider. There is no timetable announced yet but things could potentially move relatively quickly.

Interested to hear how Fresh Seed can help you when it comes to any employment law changes? Reach out to us at info@freshseed.co.uk to arrange a chat.