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Department for Business and Trade (DBT) is consulting on three areas of retained EU employment law which the department is proposing could be reformed to benefit both businesses and workers, while safekeeping employment rights. These are:

  • record keeping requirements under the working time regulations
  • simplifying annual leave and holiday pay calculations in the working time regulations
  • consultation requirements under the Transfer of Undertakings (Protection of Employment) regulations (TUPE)

EU employment law for which the DBT is responsible will be preserved in areas where the department are not either consulting on reforms or revoking legislation that is now irrelevant and will ensure that people continue to enjoy key protections as they do currently by preserving important retained EU employment law, including:

  • Maternity and Parental Leave etc Regulations 1999
  • Paternity and Adoption Leave etc Regulations 2002
  • Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000
  • Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002
  • The Agency Workers Regulations 2010
  • Information and Consultation of Employees Regulations 2004
  • Transnational Information and Consultation of Employees Regulations 1999
  • Areas of the Working Time Regulations not specified in the consultation
  • Areas of the Transfer of Undertakings (Protection of Employment) regulations (TUPE) not specified in the consultation.

As the UK is no longer an EU member state, the concept of a ‘posted worker’ does not apply as it did pre EU-exit, therefore, government has also manifested its intention to revoke the following regulations: 

  • The Posted Workers (Enforcement of Employment Rights) Regulations 2016
  • The Posted Workers (Agency Workers) Regulations 2020
  • The European Cooperative Society (Involvement of Employees) Regulations 2006

1. Consultation 

Government have identified three areas that, allegedly, are too onerous on business to be used effectively or too complex for workers to know, understand and use and is seeking views on possible reforms. Those are: 

  • Record keeping requirements under the Working Time Regulations;
  • Simplifying annual leave and holiday pay calculations in the Working Time Regulations;
  • Consultation requirements under the Transfer of Undertakings (Protection of Employment), or ‘TUPE’, Regulations. 

The BRC will respond on behalf of members and, to shape our response, we’ll host an HR Technical call at 1pm on 28 June 2023 (MS Teams). On the call, we’ll be joined by Patrick Brodie, an employment law partner at RPC LLP, who will provide the technical expertise to inform our discussions. 

To help you prepare for the call, please see below a full list of questions and more details below, and do get in touch with Luiza at luiza.gomes@brc.org.uk by 28 June 2023, if you want to share written feedback. 

Your engagement is extremely important. 

The closing date for responses is 07 July 2023. 

2. Details of the proposals and consultation questions:

2.1 Reducing the administrative burden of the Working Time Regulations

Government will preserve rights such as 48 hour weeks, rest breaks and periods, especial protections for young and night workers etc. in domestic law, however, having left the European Union, the Government has been taking the opportunity to review record-keeping requirements, assessing whether the rules that currently apply work in the best interests of businesses and workers, and proposing to remove recordkeeping obligations.

  1. Do you agree or disagree that the Government should legislate to clarify that employers do not have to record daily working hours of their workers?

Strongly agree/Agree/Neither agree nor disagree/Disagree/Strongly disagree/Don’t know

Please explain your answer, including consideration of the costs and benefits that may affect employers and/or workers.

2  How important is record keeping under the Working Time Regulations to either enforcing rights (for workers) or for preventing or defending disputes (for employers)?

Very important/Important/Neither important nor unimportant/Unimportant/Don’t know - Please explain your answer.

3  What is your experience of record keeping under the Working Time Regulations? Beyond the proposal above, how, if at all, do you think they could be improved? Please explain your answer.

4  Do you keep records to specifically meet the requirements set out in the Working Time Regulations?

Yes/No/Don’t Know

Please explain your answer. If you answered no, please explain which other records you keep to meet the requirements.

5  Do you keep working time records that go beyond the existing requirements set out in the Working Time Regulations?

Yes/No/Don’t know

Please explain your answer, including considerations of the types of records that you keep and your reasons for doing this.

6  Do you currently have a system in place that records the daily working hours of all your staff?

Yes/No/Don’t know

Please describe the system, including consideration of how the information is recorded practically, what information is recorded, the ways in which your system is automated, and whether the records are checked, verified and/or approved.

2.2 Holiday pay and entitlement reform

Government is proposing to replace regulations 13 and 13A with a new regulation with a single statutory annual leave entitlement, which will set out the minimum rate that holidaypay should be paid at. The total statutory annual leave entitlement for workers would not change and workers would continue to be entitled to 5.6 weeks of paid statutory annual leave.

Government is also proposing that workers accrue their annual leave entitlement at the end of each pay period until the end of their first year of employment, setting up a clear method for calculating holiday entitlement for workers in their first year of work.

In terms of rolled-up holiday pay, government is proposing that that is paid at 12.07%, which is the proportion of statutory annual leave in relation to the working weeks of each year. The goal is to ensure that workers with irregular hours receive their holiday pay regularly and up front.

1  Would you agree that creating a single statutory leave entitlement would make it easier to calculate holiday pay and reduce administrative burden on businesses?

Strongly agree/Agree/Neither agree nor disagree/Disagree/Strongly disagree/Don’t know - Please explain your answer.

2  (For employers): What rate do you currently pay holiday pay at?
  • 6 weeks of statutory annual leave at normal pay (including certain types of overtime, commission, and bonuses)
  • 4 weeks of statutory annual leave at normal pay and 1.6 weeks of statutory annual leave at basic pay
  • Don’t know
  • Other (please explain)
3  What rate do you think holiday pay should be paid at?
  • 6 weeks of statutory annual leave at basic pay
  • 6 weeks of statutory annual leave at normal pay
  • Don’t know
  • Other (please explain)

Please explain briefly in your answer what you think should be included as part of the holiday pay rate you have selected

4  Would you agree that it would be easier to calculate annual leave entitlement for workers in their first year of employment if they accrue their annual leave entitlement at the end of each pay period?

Strongly agree/Agree/Neither agree nor disagree/Disagree/Strongly disagree/Don’t know

Please explain your answer.

5  Are there any unintended consequences of removing the Working Time (Coronavirus) (Amendment) Regulations 2020 that allow workers to carry over up to 4 weeks of leave due to the effects of COVID?

Yes/No/Don’t know - If yes, please explain your answer

6  Do you think that rolled-up holiday pay should be introduced?
  • Yes, rolled-up holiday pay should be introduced as an option for employers in relation to all workers
  • No, rolled-up holiday pay should not be introduced
  • Don’t know
  • Other (please explain)

Please explain your answer.

7  Would your existing payroll system be able to calculate holiday pay using the rolled-up holiday pay calculation as well as the 52-week holiday pay reference period?

Yes/No/Don’t know - Please explain your answer.

2.3 Transfer of undertakings (Protection of Employment) Regulations 2006 (TUPE)

Currently, larger businesses are required to arrange elections for affected employees to elect new employee representatives if they are not already in place, even if undertaking a small transfer. Government is proposing flexibility for employers to consult directly with employees is extended to small businesses, and to all sizes of business where a transfer of a small number of employees is proposed (only if no existing employee representatives are in place).

  1. Do you agree that the Government should allow all small businesses (fewer than 50 employees) to consult directly with their employees on TUPE transfers, if there are no employee representatives in place, rather than arranging elections for new employee representatives?

Yes/No - Please explain your answer

2  Do you agree that the Government should allow businesses of any size involved with small transfers of employees (where fewer than 10 employees are transferring) to consult directly with their employees on the transfer, if there are no employee representatives in place, rather than arranging elections for new employee representatives?

Yes/No - Please explain your answer

3  What impact would changing the TUPE consultation requirements (as outlined above) have on businesses and employees?

Please explain your answer

4  What is your experience of the TUPE regulations? Beyond the proposals above, how, if at all, do you think they could be improved?

Please explain your answer