The government publishes “amending” regulations to change the Working Time Regulations (WTR) and the Transfer of Employment (Protection of Employment) Regulations (TUPE)
The government has published the Draft Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 which will amend the WTR and TUPE and come into effect on 1 January 2024, subject to parliamentary approval.
The key developments are as follows:
Amendment to record keeping obligations
Currently, the UK follows the EU regulations, and EU case law states that to comply with the provisions on maximum weekly working time and daily and weekly rest, employers are required to set up a system for recording actual daily working time for individual workers.
The government believes that this is disproportionate. It will amend the WTR 1998 to make it clear that employers do not have to keep a record of the daily working hours of all workers if they are able to demonstrate compliance without doing so.
New holiday rules for irregular-hours and part-year workers
The government has decided to make two important changes affecting “irregular hours workers” and “part-year workers”.
- Who are irregular-hours and part-year workers?
A worker is an irregular hours worker, if their hours of work are wholly or mostly variable.
A worker is a part-year worker, if they are required to work only part of the year and there are periods during the year (where they remain employed) of at least a week which they are not required to work and for which they are not paid.
Periods of sick leave or statutory leave (such as maternity leave) are not counted.
Agency workers will be subject to the same criteria and, depending on the nature of their working patterns; they may or may not qualify as part-year or irregular hours workers.
- How will the rules change?
Holiday for these workers will be subject to different rules whereby holiday entitlement will accrue on the last day of each pay period at the rate of 12.07% of the actual hours worked in that pay period.
Also, there will be the option for employers to implement a system of rolled-up holiday pay, where holiday pay (being an extra 12.07% on top of normal pay) is paid at the time work is done, instead of being paid at the time holiday is taken.
These new rules will only apply to irregular hours and part-year workers (as defined above), and only in relation to holiday years which start on or after 1 April 2024.
If you employ irregular hours workers, or part-year workers and need assistance calculating holiday pay, or are interested in moving to rolled up holiday pay, DFA Law can help. Please get in touch with us using the contact details at the bottom of this article.
Amendments to TUPE
Currently, prior to a TUPE transfer employers must consult with representatives elected by the affected staff.
There is an exception whereby small businesses with less than ten employees can inform and consult affected employees directly if there are no existing representatives in place (for example, if there is no recognised trade union).
The changes proposed by the government will remove the requirement to elect employee representatives for:
- Employers with fewer than 50 employees.
- Employers of any size involved in a transfer of fewer than ten employees.
In either of the above scenarios, the employer will be able to consult directly with employees, as long as no existing employee representatives are in place.
This will apply to TUPE transfers taking place on or after 1 July 2024.