21 November 2022

Retained EU law and case law

Following the UK’s departure from the European Union (EU) on 31 January 2020, the UK entered into a transition period, which ended on 31 December 2020.

Any UK domestic legislation that implemented EU law before 1 January 2021, is retained law, and any cases decided by the ECJ before 1 January 2021 are retained case law and must be followed by UK courts accordingly.

Employment tribunals and the EAT must decide cases in accordance with retained case law.

The Retained EU Law (Revocation and Reform) Bill, was introduced on 22 September 2022.  Under the Bill any retained EU law will automatically expire on 31 December 2023, unless specific UK legislation is introduced to retain or reform it. 

There will also be reform to the way EU case law is interpreted by the tribunals and courts.  At present only the CA and UKSC can decide whether, or not, to be bound by retained EU case law.  Under the Bill, the lower courts, including employment tribunals, will be able to ask appeal courts if they are bound by EU retained case law.

Decisions such as the ECJ case UQ v Marclean Technologies SLU (2020) which was decided just before the end of the transition period, has already posed the question of how it can be interpreted by tribunals, as it is not in accordance with the law of collective consultation in the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), may be one of the first not to be followed.

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