New employment rights regulations drafted

The government has published the draft Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023, which are likely to come into force as soon as 1 January 2024.

As drafted, these new regulations overturn some recent EU case law (for example, the calculation of holiday pay for irregular hours workers), but also reaffirm some existing EU case law in the statute books (carrying over of holiday when on leave, for instance).

It is arguably the biggest shake up in employment legislation that we’ve seen for some time.

In summary, the effect of the new regulations is as follows:

Holiday pay

• Defining ‘normal remuneration’ to include commission and other payments (regular overtime payments, for example)
• Rolled-up holiday pay (the traditional 12.07% calculation) will now be lawful for those who work irregular hours.

Holiday carry over

• EU case law in respect of holiday carry over when on sick or statutory leave has been mirrored in the regulations to ensure it will still apply.

Working time

• Removing the requirement to keep detailed records of working hours and rest breaks for all staff, ‘provided that the employer is able to demonstrate compliance [with the Working Time Regulations] without doing so.’

TUPE consultation

• After 1 July 2024, businesses with fewer than 50 employees, and businesses of any size transferring of 10 or less employees under TUPE, can consult with employees direct, if there are no existing representatives.

We will keep you updated as and when the regulations come into effect.

Our expert employment law team is here to provide any advice you may need in this area, so please do get in touch.

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