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Retained EU Law Bill becomes law – what now?

Adrian FryerThe Retained EU Law (Revocation and Reform) Act has now come into force. The Act aims to set-out the road-map for how EU-derived case law and legislation will be used after the supremacy of EU Law in the UK ends on 31 December 2023.

The Act has lost much of its potential explosive impact following the deletion earlier this year of the ‘sunsetting provisions’ which would have removed all EU-derived law from the statute books at the end of this year in the absence of specific retention.

So, what now? We have set-out below some thoughts on what might happen next:

  • Nothing will change until after the 31 December 2023. After this time the supremacy of EU law ends and all directly effective EU rights also end.
  • The government will have the power to reform EU-based laws which have been brought onto our statutory books as statutory instruments (generally Regulations like the Working Time Regulations 1998) but not those that have become acts of parliament (like the Equality Act 2010).
  • The parties in an employment tribunal will be able to request a referral to the Court of Appeal or Supreme Court if the case is affected by retained EU-based case law. The employment tribunal may make a reference where retained EU-based caselaw is relevant to the proceedings and the matter is of general public importance.
  • The Court of Appeal and Supreme Court will then be able to overturn EU-based case law. Examples of hot spots which may be impacted are what counts as working time; how you calculate how many employees are in-scope for collective redundancies; how you treat TUPE transfers where there are multiple transferees and what should be included in the calculation of holiday pay.
  • Some of the above case-law decisions are already being tackled by the government by way of proposed new legislation. A clear example is the proposed new laws in relation to holiday pay. This may well overtake any judicial consideration.

For more information please contact a member of our Employment team.