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The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023

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The government has published a draft statutory instrument containing amendments to the law on holiday pay, TUPE and working time. The changes, which are likely to come into force on 1 January 2024, include:

- simplifying holiday pay calculations by making rolled-up holiday pay (12.07% of pay) lawful for part-year workers and those who work irregular hours;

- restating various pieces of retained EU case law (to make it clear it remains part of UK law, post Brexit) to allow carry over of:

           - all statutory annual leave to the following year when a worker is unable to take their leave due to being on family related leave;

           - regulation 13 leave (4 weeks per year) for a maximum of 18 months where a worker is unable to take their leave due to sickness; and

           - regulation 13 leave where the worker has not been given opportunity to take the leave or the employer has failed to inform them that any leave not taken and which cannot be carried over will be lost.

- defining ‘normal remuneration’ for the purposes of holiday pay for Regulation 13 leave to include commission payments and other payments, such as regular overtime payments.

- removing the additional working time record keeping requirements set out in the ECJ judgment in CCOO v Deutsche Bank (which had held working hours and rest records must be kept for almost all members of the workforce, even if they worked regular hours).

- allowing small businesses (with fewer than 50 employees) doing TUPE transfers of any size, and businesses of any size undertaking a small transfer (of fewer than 10 employees) to consult their employees directly if there are no existing representatives in place.

If you’re an HR Professional, I’ll be discussing these changes (and other things you need to know about in 2024) at over the coming few weeks.