Christmas comes early!

The Government has now published a draft statutory instrument containing proposed changes to the law on holiday pay, working time record keeping and TUPE in the form of the Employment Rights (Amendment, Revocation, and Transitional Provision) Regulations 2023.

 

These Regulations are set to come into effect from 1 January 2024 though the application of the Regulations, for certain matters, are reserved for later time periods.

 

The key elements include:

 

  • simplification of holiday pay calculations for part-year workers and those with irregular working hours with the re-introduction of the 12.07% calculator;

 

  • rolled up holiday pay for part-year workers and those with irregular working hours, previously ruled by the European Court of Justice as unlawful in the matter of Robinson Steele v RD Retail Services [2006] IRLR 386, will again be allowed;

 

  • certain rights established by European Case law will be re-stated, to prevent any post-Brexit confusion, regarding the carry-over of:

 

-all statutory annual leave in the circumstances where the worker has been unable to take it due to being on family related leave;

-Regulation 13 leave (4 weeks per year) in the circumstances where the worker has not been informed about the leave, denied the opportunity to take the leave or not told they would lose it, if not taken;

– Regulation 13 leave (4 weeks per year) for a maximum of 18 months in the circumstances where the worker was unable to take it due to being on sickness leave;

 

  • ‘normal remuneration’ for the purposes of holiday pay for Regulation 13 leave (4 weeks per year) to include commission payments and other payments including overtime payments;

 

  • the removal of the additional working time record-keeping requirements set out in the ECJ judgment of CCOO v Deutsche Bank (which had held that records of the working hours and rest of all workers must be kept, even of those on regular hours);

 

  • allowing small businesses (defined as having less than 50 employees) undertaking a TUPE transfer to consult directly with employees where there are no existing representatives in place. Additionally, allowing businesses of any size undertaking a small TUPE transfer (of fewer than 10 employees) to consult directly with employees where there are no existing representation.