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Government lays down draft regulations amending Working Time and TUPE

Our Employment team explains the main changes and the impact these reforms will have for employers.

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Published 10 November 2023

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Intended to come into force on the 1st January 2024, the government has laid down the Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 (the New Regulations) which propose to changes some of the obligations under existing TUPE rules and also introduce changes to the Working Time Regulations (WTR).

Changes to TUPE

The New Regulations would allow small businesses (fewer than 50 employees) and any business undertaking a small transfer (fewer than 10 employees) to consult directly with staff if there are no existing representatives in place.

Changes to Working Time

The New Regulations clarify an employer’s obligation to maintain records in respect of working time.

They further set out EU rights that would otherwise be revoked by the Retained EU (Revocation and Reform) Act 2023, relating to carry over annual leave under the WTR in certain situations, for example, due to sickness absence or failure to recognised employment status. The explanatory note accompanying the new Regulations states that these new provisions include a method for when workers ‘may take that leave, and/or when it can be carried forward and what is to happen if they take more or less annual leave then they are entitled to take in a leave year’ with detailed steps included within the act, to aid calculation of an employee’s entitled leave. ‘Normal pay’ under Regulation 13 WTR is also defined in the New Regulations.

The New Regulations also addresses the recent Supreme Court decision in Harpur and from 1 January 2024, they will simplify holiday pay calculations by making rolled-up holiday pay lawful for part-year and irregular workers. This means employers can return to the practice of adding 12.07% of pay in respect of rolled-up holiday, as was common before Harpur.

The New Regulations also amends the WTR to provide a ‘backstop’ date of 31 March 2024 for annual leave carried over under Covid 19 provisions.

For more information, visit our Employment Lawyers page.

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Longer Reads

Government lays down draft regulations amending Working Time and TUPE

Our Employment team explains the main changes and the impact these reforms will have for employers.

Published 10 November 2023

Associated sectors / services

Authors

Intended to come into force on the 1st January 2024, the government has laid down the Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 (the New Regulations) which propose to changes some of the obligations under existing TUPE rules and also introduce changes to the Working Time Regulations (WTR).

Changes to TUPE

The New Regulations would allow small businesses (fewer than 50 employees) and any business undertaking a small transfer (fewer than 10 employees) to consult directly with staff if there are no existing representatives in place.

Changes to Working Time

The New Regulations clarify an employer’s obligation to maintain records in respect of working time.

They further set out EU rights that would otherwise be revoked by the Retained EU (Revocation and Reform) Act 2023, relating to carry over annual leave under the WTR in certain situations, for example, due to sickness absence or failure to recognised employment status. The explanatory note accompanying the new Regulations states that these new provisions include a method for when workers ‘may take that leave, and/or when it can be carried forward and what is to happen if they take more or less annual leave then they are entitled to take in a leave year’ with detailed steps included within the act, to aid calculation of an employee’s entitled leave. ‘Normal pay’ under Regulation 13 WTR is also defined in the New Regulations.

The New Regulations also addresses the recent Supreme Court decision in Harpur and from 1 January 2024, they will simplify holiday pay calculations by making rolled-up holiday pay lawful for part-year and irregular workers. This means employers can return to the practice of adding 12.07% of pay in respect of rolled-up holiday, as was common before Harpur.

The New Regulations also amends the WTR to provide a ‘backstop’ date of 31 March 2024 for annual leave carried over under Covid 19 provisions.

For more information, visit our Employment Lawyers page.

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