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  • Writer's pictureSusan Wakelin

Post-Brexit Employment Law Changes?

Updated: May 25, 2023

With over 2,400 pieces of EU law on the government's retained EU law dashboard, the Government introduced the Retained EU Law (Revocation and Reform) Bill.

Employment Law Changes

The Government stated that they "will ensure that only regulation that is fit for purpose, and suited for the UK will remain on the statute book".

Retained EU Law (Revocation and Reform) Bill

The Retained EU Law (Revocation and Reform) Bill was introduced to the House of Commons on 22 September 2022 and planned to reform or scrap thousands of laws carried over from the EU by the end of 2023. However, the Bill is controversial, and there is a lot of opposition.

To remove concerns, the Government have announced the removal of the much opposed "sunset clause". The sunset clause allowed any retained EU laws, which hadn't been deliberately earmarked to be kept, to be automatically discarded on 31 December 2023. With the removal of this clause, the Government will now produce a list of the retained EU laws that they intend to remove under the Bill by the end of this year.

In addition to this, the Government has announced plans for "reducing burdensome red tape and tailoring rules to suit the UK economy that could save employers around £1 billion a year" to benefit businesses. These changes will include the Working Time Regulations, limiting non-compete clauses and simplifying the TUPE regulations where a business transfers ownership.

Working Time Regulations

Currently, employment law requires employers to keep "adequate records" of maximum working time for types of workers, such as night workers and young workers, and EU case law imposes the requirement for employers to also keep records of working hours and rest breaks for all employees. The Government plan to remove this requirement to ease and reduce record keeping for employers.

A further change being considered is to the statutory minimum holiday entitlement, where it is currently split between four weeks holiday entitlement and eight bank holidays. The split is important for employers, where the four weeks holiday pay includes overtime and commission payments in line with EU case law. However, the Government are planning to merge these two entitlements into one, which could remove the requirement to include overtime and commission into holiday pay.

In addition to this, the Government plan to re-introduce rolled up holiday pay, which is where workers receive money on top of their hourly rate in relation to holiday they may take in the future, rather than receiving holiday pay at the time of their holiday.

Consultation is also still in place to reintroduce the traditional 12.07% method of calculating holiday entitlement, after it was removed recently with the Harper Trust decision.

Transfer of Undertakings (Protection of Employment) Regulations (2006)

Currently, employers must consult collectively with employees affected by a TUPE transfer through elected employees or trade union representatives where eleven or more employees are affected. The Government are now planning to remove this for businesses with less than fifty people, which will reduce some of the administration for small to medium sized businesses, who will be able to carry out individual consultations.

Non-Compete Clauses

There is currently no specific employment law in relation to non-compete clauses, however, tribunals will consider their "reasonableness". The Government have now proposed a new law to limit non-compete clauses to three months, where employers have been known to abuse these clauses by extending them to six or even twelve months.

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