Will scrapping EU laws mean end for paid holiday in UK?

Most workers in Britain are entitled to 28 days of paid annual leave, one of the highest rates internationally.

While the EU’s Working Time Directive was originally set at four working weeks (20 days) when it was introduced in 1998, the UK upped this when the law was changed in 2007.

However, the UK’s paid leave allowances were set by a statutory instrument based on the EU law – one of the same laws potentially in the Government’s crosshairs for revocation.

The Government has insisted it has no intention of turning back the clock on workers’ rights in the UK – but has given no specific assurances about maintaining holiday pay.

A primer on the situation published by Thorntons Law – one of Scotland’s largest law firms – noted that the EU’s working time regulations would “disappear” under the Government’s Retained EU Law (Revocation and Reform) Bill.

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The bill sets a “sunset” clause for EU law which was retained in the UK following Brexit – with the deadline for most laws set at the end of 2023.

This means that unless the Government specifically legislates to keep the current levels of holiday allowance, they will likely end.

In a blog published by leading employment lawyer Sean Jones in the run-up to the Brexit referendum, he noted that the UK had no legal minimum for paid annual leave before 1998 and that the Conservative government which preceded the EU-friendly New Labour administration “fought tooth and nail” against the European directive.

As he highlighted pre-Brexit: “The only thing continued membership [of the EU] prevents is having less generous rights.”

Should we be worried?

While it might seem like political suicide to scrap workers’ paid holiday allowances in a time of mass strikes and a crisis in living standards which threatens to immiserate thousands, the Prime Minister might face pressure to get the bill over the line before the close of the year.

Former minister Nadine Dorries tweeted on Wednesday that recent indications Sunak was cooling on the EU law “bonfire” meant they were “not happening” saying that the promises of Boris Johnson’s “progressive Tory government” were being “washed down the drain”.

Tory MP Mark Francois, the European Research Group chairman, spoke to The Telegraph on Tuesday urging the Prime Minister to be firmer on making sure EU laws go.

Currently, the bill will allow some EU laws to be retained until 2026 to allow them to be replaced or reformed without falling away entirely.

Sunak may therefore face pressure from the more ardent Brexiteers within his party – many of whom will be concerned about losing their Leave-backing “red wall” constituencies at the next election.

Is there any hope?

Some. The Times reported earlier this week that the Lords would force Sunak to abandon the plans, quoting a “senior government source” as saying that it was “inevitable” peers would hold up the plans.

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Robin Hodgson, who chairs the Lords important secondary legislation committee, told The Guardian that he and others were “quite concerned about what this is going to mean in terms of workload and practicability”.

The EU law bill does not just extend to employment law – it covers everything from maternity leave to food safety laws, all of which could be subject to deregulation if the plans do go ahead.

But this means that MPs and peers must review around 4000 pieces of EU law.

David Cabrelli, professor of labour law at Edinburgh University, told this paper that scrapping all retained EU law in the way some Tory MPs would see it done would be worse than “criminally negligent”.

He said ditching thousands of laws by the end of the year was not feasible on a practical level.

"You can still achieve that deregulation exercise in quite a profound way but you need to be competent about it, you need to do it in a responsible and appropriate way,” Pro. Cabrelli said.

“Chucking it all on the bonfire is reckless, it’s not even criminally negligent, it’s worse than that. It’s just reckless, you’re basically creating lots and lots of gaps in the legal system.”

Prof Cabrelli said while it was unlikely the Government would reduce workers’ holiday entitlement they could rework the definition of holiday pay to make it less generous.  

The definition of normal pay used to calculate how much workers are paid while on holiday is based on EU law – which will no longer take precedence over UK law after the bill is passed, he explained.

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Prof Cabrelli said: “I think what they’re more likely to do is reincorporate the 28-day period … but essentially prescribe that the relevant rules interpreting what is ‘normal pay’ are repealed. I think that’s definitely what they’re going to do.

“The EU rules on what counts as ‘normal pay’ are very generous and I think when they repeal the 1998 regulations … it will say that the very generous EU rules on what constitutes ‘normal pay’ are no longer part of British law.”

He added: “EU law is no longer supreme over UK law, so any EU law that’s enshrined in the case law regarding increased, more generous payments is effectively no longer applicable, the courts don’t need to apply that anymore.”

Prof Cabrelli warned this would affect anyone whose income was regularly topped up with overtime pay, commission or any other supplements – meaning taking a holiday would mean a slightly docked paycheque during annual leave.

Thorntons Law warned: “At such an early stage, there is only speculation as to which laws will be retained, and it is expected that there will be significant debate and many proposed amendments before the bill is passed into law.

“While previously, employers would have approximately two years to prepare for the implementation of new EU directives, it looks like time isn’t on their side with the new bill.

“A period of uncertainty for employees and employers alike is ahead.”

What are the Government saying?

The Government have said they have “no intention of abandoning our strong record on workers’ rights” – but gave no specific assurances when pressed that the 28 days standard would be maintained.

A spokesperson said: “The programme to review, revoke and reform retained EU law is underway and there are no plans to change the sunset deadline for any government departments.

“This Government has no intention of abandoning our strong record on workers’ rights, having raised domestic standards over recent years to make them some of the highest in the world.

“The Retained EU Law Bill will enable us to grasp important opportunities provided by Brexit and move away from outdated EU laws to establish our own rules for how we live and govern our lives in Britain.”