At the same time as announcing amendments to the Retained EU Law Bill replacing the automatic “sunsetting” of retained EU laws, the government has launched a consultation on reforms to three key areas of UK employment law which derive from EU legislation.
The first proposal is concerned with record keeping requirements under the Working Time Regulations so that employers do not have to keep a record of the daily working hours of the workers they engage. In explaining this proposal, the government refers to a 2019 judgment of the Court of Justice of the European Union in which it ruled that the employer must have an “objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured”. Specifically, in this case, the court held that records must be kept in relation to the right to a minimum daily rest period of 11 consecutive hours in each 24-hour period; the right to a minimum uninterrupted period of rest of 24 hours in each seven-day period; and the limit on the maximum weekly working time. The government contends that this is a disproportionate requirement to place on employers that should be removed.
The second proposed change involves removing the distinction between the two types of annual leave entitlement to which workers are currently entitled under the Working Time Regulations – four weeks under regulation 13 which implements the leave requirement under the Working Time Directive and 1.6 weeks under regulation 13A which is an additional entitlement above and beyond the minimum period provided for by the directive. This would create a new single statutory annual leave entitlement of 5.6 weeks. The consultation is also seeking views on creating a single holiday pay rate for these 5.6 weeks and as an alternative a “rolled up” rate (which is currently unlawful) whereby workers receive an additional amount or enhancement with every payslip to cover their holiday pay, as opposed to receiving holiday pay only when they take annual leave.
The third proposed change focuses on the consultation requirements under the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) 2006. The government wants to allow small businesses without existing employee representatives in the workplace to be allowed to consult directly with employees without having to arrange elections for worker representatives. It also wants this change to apply to all businesses, irrespective of their size, if they are proposing to transfer 10 employees or fewer.
Neil Todd, a lawyer in Thompsons Trade Union Law Group, emphasised that there is a general unease that the government has begun seizing opportunities to undermine workers' rights previously protected by EU law and that the EU's stance on these changes and their compliance with the UK's obligations under the EU/UK Trade and Cooperation Agreement remain to be seen.
The consultation closes on 7 July 2023.
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