Follow up

Retained EU employment law reforms: consultation

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Economic proposal

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Proposals to change retained EU employment law

Working Time Regulations

As set out in its policy paper “Smarter regulation to grow the economy” (see Follow up ), the government intends to reform the Working Time Regulations 1998 (SI 1998/1833) (WTR) and so is now consulting (see Follow up ) on proposals to:

• remove the requirement for employers to keep records of the actual daily working hours of their workers - this obligation is derived from retained EU case law, not from the wording of the WTR .

Pro advice. The failure to keep records is an offence enforced by the HSE, and not by workers bringing a tribunal claim, and it doesn’t appear that the HSE changed its enforcement strategy to reflect the EU case law. So, many employers probably didn’t bother to change their practices to keep such working hours records. Nevertheless, reform here would mean they wouldn’t then be breaking the law, but minimum wage record-keeping obligations would continue to apply.

• reduce the administrative burden and complexity of calculating holiday pay by: (1) introducing rolled-up holiday pay at 12.07% of a worker’s pay, so that workers can receive their holiday pay with every payslip - this is useful for casual and agency workers, and some employers operate rolled-up holiday pay despite it currently being unlawful under retained EU case law; and (2) merging the current four weeks’ EU-derived statutory annual leave entitlement with the additional 1.6 weeks statutory annual leave, so that there would be a single statutory annual leave entitlement of 5.6 weeks.

Pro advice. Currently, different rules apply to how holiday pay should be calculated for each type of annual leave. The consultation will explore how to define the rate of holiday pay once there’s a single leave entitlement, and any amending regulations “will set out the minimum rate that holiday pay should be paid at”.

TUPE

The government intends to change the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) (TUPE) . It’s consulting on allowing: (1) small employers (fewer than 50 employees) to consult directly with affected employees on the TUPE transfer if there are no existing employee reps in place; and (2) businesses of any size to consult directly with affected employees on the transfer if it affects fewer than ten employees and there are no existing employee reps in place. Currently, unless the employer is a micro-business (employing fewer than ten employees), they must consult with employee reps on the TUPE transfer, and this may involve having to arrange elections for new reps.

Pro advice. The consultation closes on 7 July 2023 if you want to contribute to it.

Other retained EU employment law

The government has scrapped its sunset clause in the Retained EU Law (Revocation and Reform) Bill, so retained EU employment law won’t be automatically revoked on 31 December 2023. Indeed, the consultation makes clear that significant retained EU employment law will be preserved, including the Maternity and Parental Leave etc Regulations 1999 (SI 1999/3312) , the Agency Workers Regulations 2010 (SI 2010/93) , the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551) and the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (SI 2002/2034) , plus the WTR and TUPE (except as set out above).

Smarter regulation to grow the economy: policy paper

Retained EU employment law reforms: consultation