A guide to the government’s recent consultation on retained EU Employment Law

In November 2023 the government published a response to a consultation they conducted earlier this year in respect of reforms to retained EU employment law.

This consultation came about following our exit from the EU and places a key focus on amending, removing, or replacing unnecessary employment laws we have retained from the EU, thereby simplifying some areas of complex legislation we find ourselves working with!

Key outcomes following this consultation are:

The government intends to re-publish guidance around record-keeping requirements under the Working Time Regulations.

The Working Time Regulations require employers to keep objective, reliable and accessible records in relation to employees’ daily rest breaks, weekly rest periods, and weekly working time. However, the Government has acknowledged that there is widespread uncertainty from employers about their record-keeping obligations.

The government therefore intends to provide clarity on the record-keeping requirements. They have committed to re-publishing guidance, and we are anticipating this will be released in due course.

Simplification of annual leave and holiday pay calculations for irregular hours workers and part-year workers.

The Supreme Court’s decision in the Harpur Trust v Brazel case last year brought about widespread confusion for employers (and HR Advisors alike!).

The case resulted in the previous 12.07% method for calculating holiday pay for all irregular hours workers (including those working under a zero-hour contract or part-year workers) to be deemed unlawful, and instead proposed the introduction of a 52-week holiday entitlement reference period.

Following the ruling, employers expressed concern around the large administrative burden the 52-week method creates. Thankfully, the government has now committed to re-introducing an accrual method to calculate holiday entitlement at 12.07% of hours worked in a pay period for irregular hours workers and part-year workers. This is the same method that was widely used before the Harpur Trust judgement and is found to better reflect what workers have actually worked in the current leave year.

This should help simplify and address concerns about the calculation of holiday entitlement and make entitlement clearer for all irregular hours workers.

The reintroduction of rolled-up holiday pay for irregular hours workers and part-year workers.

Rolled-up holiday pay is where employers pay an additional amount on top of an employee’s standard hourly rate of pay to represent their holiday pay entitlement. This practice has been unlawful since 2006; however, the Government has committed to reintroducing rolled-up holiday pay for irregular hours workers and part-year workers only. This is with a view of further reducing the administrative time it takes businesses to calculate holiday pay for these individuals.

Simplification of consultation requirements under the Transfer of Undertakings (Protection of Employment), or ‘TUPE’, Regulations.

Currently, where a TUPE transfer is proposed, employers are required to consult with any recognised trade union, or with appropriate employee representatives, regarding the transfer. Where there are no representatives in place, the employer is required to arrange an election to elect representatives to consult with.

The government is looking to simplify this process by allowing small businesses (with fewer than 50 employees) undertaking a transfer of any size, and businesses of any size undertaking a small transfer (of fewer than 10 employees), to consult with employees directly if there are no existing worker representatives in place. It is hoped that this small change will give businesses more flexibility and make the process of TUPE transfers quicker.

Please do note that these changes only apply in instances where businesses do not have existing employee representatives to consult. Where employee representatives (including trade unions) are in place, employers will still be required to consult with them.

The above changes have been announced as draft legislation and we are awaiting official guidance to be published in due course. We will update you as soon as we know more.

Contact Us

Should you have any questions about the topics covered in this article, please do not hesitate to contact us and we will be able to assist you. Contact us at HR@skaltd.co.uk or call 01427 420 404 and #oneoftheteam will be happy to help.