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Caspar Glyn KC

@CasparKC

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The Retained EU Bill, in less than a year, aims to reform more employment law than in the last 50 years. It will be quite a change and, once passed, will require positive action from the UK Government to retain swathes of Employment Law. This is a quick first blush summary. 1/

Gone, from the end of 2023 are the Working Time Regulations (including trucks, seafarers and airlines (including pilots)), Agency Worker, Part Time, Fixed Term Worker regs, Transferred workers Regs, quite a few Health and Safety regs (protections or red tape?) unless..... 2/

this Government takes positive steps to retain them. But no regulation can provide for retention beyond 23 June 2026 (10 year anniversary of the referendum). IP Completion day is, for reference, 31 December 2020. 3/

Section 4 of the EUWA is repealed. That means that directly effective rights under the Treaty, Directives and Case law that had direct effect before IP day and continued to have effect thereafter are no more. For examples see the next tweet 4/

An example of what may be affected is Article 157 of the Treaty or the principle of normal pay for holiday pay. The former is what tens of thousands of women currently use to claim equal pay from supermarkets and the latter is a right that all workers and employed people enjoy.5/

Section 5 of EUWA used to make EU supreme to any law passed before IP completion day. That meant that there was no change in how the law in the UK had been interpreted since 1972 except for new law passed from 1 January 2021. 6/

That meant that post Brexit the Government could make a positive choice to depart. No more. The principle of deliberate departure only is replaced by default subjugation of all EU law to UK law. All enactments & rules of law are now subject to UK law and cede precedence to UK law

No more stretching UK statutory interpretation to give effect to EU law – which was an approach based on the Courts assuming that Parliament always intended to apply EU law properly when it legislated. Not any more. General principles of EU law disappear from our law from 8/

the end of 2023 – gone are such principles such as effectiveness or equivalence. Purposive approach to interpretation and then purposive construction so as to ensure that UK law complied with EU law – gone, gone, gone. 9/

No one knows what will be retained by deliberate regulation and what will go on the bonfire. However, the European Trade and Cooperation Agreement provides that if changes to UK employment law have a material effect on trade or investment then, 10/

following defined procedures, measures can be taken by the EU to rebalance their effect (tariffs etc). UK employment law is, to a large extent informed by EU law and interpretive principles. Of course, these legal changes could bring reduced cost to business 11/

but if that attracted inward investment into the UK but, if they did so, particularly if they made investment into the UK more attractive than the EU, then it would raise the spectre of enforcement measures under the Trade and Cooperation Agreement. 12/

This also seems to me to be an approach that is not incremental but seeks to move quickly. Repealing one set of principles and an interpretive approach is something any elected Government in a democracy is free to do. The problem here is 13/

once that edifice is torn down – what is left in its place? My fear for businesses and for employees and workers is that it will be litigation over the uncertainty that follows. Further, employment law – and many of these laws – are not used day in and day out by workers in good

businesses – after all there is a shortage of workers and the market acts so that good employers compete on wages and benefits. My experience in practice shows that Employment law is most often used against employers who abuse and exploit as happened, for instance, 15/

in the Boohoo supply chain. Employment is a relationship that requires regulation because of the imbalance of power of the individual against the employer. (where the worker seeks to address that power by unionising etc then that equalisation of power is also regulated of course)

There is a Chinese curse that my stepmother used to tell me – may you live in interesting times. As employment lawyers we do, and I for one am cursing 17/

as I look at the 30,000 words I have just written on the EU Withdrawal Act and Retained law that will need to be rewritten (or perhaps, even more soul destroying, just deleted) by the end of 2023 or buried in a time capsule. 18/18

Caspar Glyn KC

@CasparKC

Leading trial and appellate Silk in Employment and Sports' law. Chair Legislative & Policy Committee Employment Lawyers’ Association. Less successful than wife

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