Retained EU Law reform — draft statutory instrument published

There are a number of employment law changes being brought into force from 1st January 2024.
The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 (the Regulations) will come into force on 1 January 2024, the Regulations seek to address the Government’s response to consultation in the following matters:

• Record keeping requirements under the Working Time Regulations
• Simplifying annual leave and holiday pay calculations in the Working Time Regulations
• Consultation requirements under the Transfer of Undertakings (Protections of Employment) Regulations 2006 (TUPE)

In addition, the Equality Act 2010 (Amendment) Regulations 2023 (the Regulations) have been published and are intended to reproduce in UK law a number of equality protections that had previously been protected under EU case law. We look at a few of the key changes. 

Record Keeping

The Government has confirmed that it will make clear that businesses do not have to keep a record of workers daily working hours, which has the potential high cost of implementing a system of recording working hours. Businesses will still be required to keep adequate records to demonstrate compliance with the Working Time Regulations. However, this proposal intends to remove the requirement on businesses to keep very detailed records that were often disproportionate to the cost, administrative burden and the effect on workers. In any event, an employer’s compliance with this record-keeping requirement is low, as it is perceived as onerous and very rarely enforced.

TUPE

The Government will proceed with the planned reform to the TUPE consultation requirements. Currently employers are required to inform and consult with employee representatives where there is a TUPE transfer. The proposed reforms will allow small businesses (with fewer than 50 employees) and businesses of any size undertaking a small transfer (of fewer than 10 employees) to consult directly with their employees if there are no existing worker representatives in place. Where employee representatives, including trade unions, are in place, employers will be required to consult them.  

Simplifying annual leave and holiday pay calculation

As part of the consultation, the Government sought views on a proposal to consider rolled-up holiday pay and, in addition, consulted on the effect of the Brazel v Harpur Trust judgment.

The Government has now proposed to introduce rolled up holiday pay as an option for all workers. The main benefits for rolled up holiday pay for businesses is to significantly reduce the administrative burden of calculating holiday pay for those who work irregular hours and are part year workers. The Government is also seeking to legislate an accrual method to calculate holiday entitlement at 12.07% of hours worked in a pay period for irregular hour workers and part year workers in the first year of employment and beyond.

The Regulations will also restate and set out in statutory form, EU rights that would otherwise be revoked by the Retained EU (Revocation and Reform) Act 2023.