There has recently been a significant update on the EU Law (Revocation and Reform) Bill that we wrote about previously. The government have U turned on their earlier decision, and instead will look at a specific list of the retained EU laws to be revoked under the Bill at the end of 2023. The first stage under this has now been announced, and it is likely to impact on your clients.
A period of consultation has now opened seeking views on three areas of retained EU employment law:
• 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 (Protection of Employment) regulations (TUPE).
Working Time Regulations 1998
Rolled Up Holiday Pay (RUHP)
This is currently unlawful and should not be used.
Introduce rolled up holiday pay so workers can receive holiday pay with their every payslip, rather than during any periods of annual leave.
Your clients will have to consider what calculation to use. This could be 12.07% (equivalent to 5.6 weeks pay of total annual earnings), but this has not yet been confirmed.
4 weeks annual leave as per EU laws plus 1.6 weeks annual leave (8 bank holidays) as per domestic laws.
Merge the two separate leave entitlements (4 + 1.6 weeks) into one pot of statutory annual leave (5.6 weeks/28 days).
Your clients may need to update their contracts to reflect “28 days” entitlement rather than “20 days plus 8 bank holidays”.
This may also impact on certain holiday case law principles, such as the right to carry over the first four weeks of holiday pay into the next annual leave year when unable to take it due to sickness which comes from EU case law.
Regulation 9 of the Working Time Regulations requires employers to keep “adequate records” of certain factors, e.g. maximum daily/weekly working time, including for young workers and night workers. Records should be kept for two years.
EU case law requires records to be kept of daily or weekly rest or of the hours worked each day for every worker.
Remove retained EU case law that imposes the requirement to keep detailed records of working hours.
This will have minimal impact. Your clients may decide to review their current record keeping measures and decide that less is needed. However, evidence of working hours will need to be kept for national minimum wage compliance.
Transfer of Undertakings (Protection of Employment) Regulations (2006) (TUPE)
Duty to consult
Employers must collectively consult with employees affected by a TUPE transfer via elected or union representatives. Individual consultation is only allowed for microbusinesses, i.e. where a business employs 10 employees or less.
Remove the requirement to consult with elected representatives for businesses with fewer than 50 people and transfers affecting less than 10 employees.
This will reduce the need for many of your clients who are SMEs to elect reps in TUPE situations, but as an alternative they will need to consult individual with their staff instead.
These proposals, if introduced, will bring in significant changes to UK employment law, and are likely to relieve at least some of the burdens placed upon your clients.
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