Update on revocation of EU-derived employment laws
Whilst the UK Government has scrapped its plan to revoke all EU retained laws (unless specifically preserved) on 31 December 2023, it is pressing ahead with plans to remove the supremacy of EU law (including EU case law).
Staying (for now):
EU-derived legislation
The UK Government had previously suggested that all EU-derived legislation would be revoked as at 31 December 2023 unless specifically preserved. The decision to reverse this proposal is, generally speaking, a welcome development.
The blanket scrapping of all EU-derived legislation, unless specifically preserved, would have been confusing and disruptive for many employers given so much of employment law derives from the EU.
Going:
Supremacy of EU law (including EU case law)
Whilst the reversal on the scrapping of EU legislation has rightly grabbed headlines, less attention has been given to the fact that the UK Government still plans on removing the supremacy of EU law.
This is significant as not all employment law principles and practices are merely derived from legislation - but are shaped and clarified by key cases and judgments from EU courts.
The Bar Council (amongst others) has warned of the dangers of this proposal going ahead and the "deliberate creation of legal uncertainty" it will bring given it would "remove the established principles by which" our EU-derived laws have "been interpreted, in many cases over decades of case law".
Tellingly, perhaps, the recent proposals regarding working time regulations (see our update here) are specifically designed to address a 'burdensome' EU Court of Justice decision.
This suggests (whether intentional or otherwise) that the UK Government does envisage a role for EU case law after 31 December 2023, otherwise it wouldn't be legislating as it is for working time regulations.
