Last reviewed 4 February 2022

Two years on from “Getting Brexit Done”, the Government has marked the occasion with the announcement of a new “Brexit Freedoms Bill”. A campaigner for Brexit and freedom from EU regulation, the Prime Minister Boris Johnson’s Government has declared their intention to review all retained EU law and identify areas within which reform needs to be prioritised so as to reassert UK sovereignty by “unlocking growth” in ways tailored to the UK market.

Alongside this announcement, a policy document was published entitled The Benefits of Brexit: How the UK is Taking Advantage of Leaving the EU, within which the Government set out steps already taken and those that they intend to take. However, from a HR and employment law perspective, we are yet to see which specific elements of the law are under scrutiny for change. Many of the significant pieces of employment law in the UK are derived from EU rights, such as TUPE and the rules around working time. Many important European Court of Justice (ECJ) cases have also impacted the way decisions have been made in our own courts and continue to have an effect post Brexit.

What does this mean for HR?

Employment law in the following areas is governed by the EU and falls within the areas of “retained law” that the Government will be reviewing with a view to reform:

  • minimum annual leave entitlement

  • minimum breaks and rest periods

  • maternity leave/paternity leave/parental leave

  • discrimination

  • equal treatment of agency workers

  • rights upon the transfer of an undertaking

  • rights for part-time/fixed-term staff

  • rights for employees to be informed and consulted with over major changes at work.

It should be noted that laws on unfair dismissal and National Minimum/Living Wage do not stem from the EU and will therefore not be subject to this review.

We might see changes to the maximum 48-hour working week, which was introduced by the Working Time Directive, but only incorporated into UK law in a limited way by the implementation of an “opt out” agreement. Case law such as that requiring the carry-over of annual leave during sickness and governing the definition of a week’s pay for the purposes of holiday pay all stem from ECJ rulings and interpretation of EU law, and therefore, theoretically, are within the scope of this review. Previous indications have been that the Government would be looking to make changes in these areas, and the fact the Working Time Regulations 1998 were never updated to incorporate these case law derived changes suggests unwillingness to entrench these via legislation which could suggest significant reform is on the cards in this area.

What else could change?

Other changes that have been tentatively discussed is a cap on discrimination legislation and the ability to positively discriminate in favour of under-represented groups, both of which are prohibited under EU law, but the commentary suggests these are being considered for the UK. As far back as early 2021 there were reports that the Department for Business, Energy and Industrial Strategy were drawing up deregulation plans removing what the Government felt was holding UK businesses back from growth and success. The emergence of the pandemic around the same time has seemingly derailed this, but with the new “Brexit Freedoms Bill”, there are signs this is back on the legislative agenda.

The new “Brexit Freedoms Bill” is designed to make it easier to amend or remove outdated law that remains with us as a legacy from EU membership and remained as part of the bridging measures agreed with the EU during the separation. However, what we are unlikely to see, due to the agreements made with the EU, is a regression from the current level of employment rights available. Whilst the reduction of complexity and “red tape” is likely, reducing rights with a view to gaining a competitive advantage against those remaining in the EU is not something that we are likely to see.

Overall, whilst the exact nature of the changes is yet to be seen, it is clear that “Getting Brexit Done” has not yet been completed and we can expect to see some interesting changes in the months and years to come in HR and employment law.