Significant Changes to Employment Law; thank Brexit for that!
The Government has finally published its long awaited response to the consultation on “Retained EU Employment Law”! It seems an age ago, that we witnessed those big red buses promising us that Brexit would save the NHS and free us from the bureaucracy and red tape of EU Law. I’m not sure many of us can see a GP any quicker, or that the recruitment of nurses has been resolved, but some of that red tape has finally been snipped.
Since Brexit, we have seen very little in the way of new employment law save for some fine tuning and extension of the likes of the right to work flexibly, but we do now have some changes that will make a difference to businesses throughout the UK.
Annual Leave and Holiday Pay
The most significant amendment, and one that will be welcomed by employers, is the reformation of the calculation of annual leave and holiday pay. The Supreme Court’s decision in Harpur Trust v Brazel 2022 created huge issues for employers, both in terms of the administrative burden involved in calculating holiday pay and the bizarre results for part-year workers who are often now receiving more holiday pay than a comparable worker, working the same number of hours but on a part-time as opposed to part-year basis.
Following the decision, holiday pay for part-year workers had to be calculated based on a 52 week reference period, but excluding any weeks in which no work was undertaken, usually meaning employers are forced to go back further than the most recent 52 weeks. Please see our earlier article for further details.
Thankfully, the Government has acknowledged the madness of this situation and from 1 January 2024 part-year workers and those with irregular hours will accrue annual leave at 12.07% and be paid at that same rate – which was exactly what 99% of all employers were doing prior to the decision in Harpur Trust v Brazel 2022 – normality and common sense has been resumed!
However, employers do not have long to rectify their payroll systems, contracts of employment and relevant policies – if you require assistance in this regard, please do contact me on the contact details below.
Record-Keeping
The other changes will have less impact on a daily basis but are still helpful to employers; the Government will go ahead with the proposed change to the record-keeping requirements under the Working Time Regulations. The response confirms that businesses will not have to keep a record of workers’ daily working hours – albeit I am not convinced that many businesses retained the records for any longer than they required in any event. It has also been confirmed that 31 March 2024 will be the backstop for the carryover of annual leave from the Covid provisions – again, I cannot see this as having a significant impact given the small number of employees who will still be carrying over leave from the Covid-years.
Transfer of Undertakings Protection of Employment rights (TUPE)
The final change concerns an employer’s obligation to consult with elected representatives during a TUPE transfer. Under the new rules, where a business has less than 50 employees, or fewer than 10 employees are transferring to a new employer, there will be no obligation to elect employee representatives or comply with the red tape of collective consultation. Again, this should be welcome news to employers who will be able to avoid the time and administrative burden of holding elections for the transfer of businesses or parts of their business. Not only this, but consulting directly with your employees, as opposed to elected representatives, is likely to be far more effective and will ensure that nothing is lost in translation or misinterpreted. TUPE is often described as a minefield, but the reality is, if you know the rules and follow them, you are unlikely to have any issues – the removal of the election will make things even simpler.
So while they “got Brexit done” and may have “taken back control”, well some of it, and now finally removed some of that red tape, I’m still going to be placed on hold and have to request a call back before I can see my GP!
If you require assistance with any of the above Employment Law matters, particularly if you employ part year or workers with irregular hours, please do contact me at jtwine@wolferstans.com or on 01752 292351.