The government has published new draft legislation (The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023), which contains amendments to the law on holidays, TUPE and working time. Whilst this new draft legislation still needs to complete the final stage of the legislative process, significant changes are not anticipated.
The draft legislation states that these changes will come into force on 1st January 2024.
Many of the changes will be welcome and will simplify areas.
The main changes are as follows:
The new Regulations will make key changes to holiday rights for certain atypical employees, namely those employees with irregular hours or who only work part of the year (e.g. term-time). These changes will apply for holiday years starting on or after 1st April 2024.
A new method of holiday accrual for these employees. This stems from confusion following the Supreme Court’s decision in Harpur Trust v Brazel last year which resulted in those employees who only work part of the year having more holiday entitlement than part time employees who worked the same number of hours on an annual basis. Under the new legislation, employers are permitted to calculate holiday entitlement for irregular hours and part year employees as 12.07% of the hours worked in a pay period. This does not affect how holiday entitlement should be calculated for employees with regular hours.
The new Regulations will permit employers to choose to rolled-up holiday pay for part-year workers and those who work irregular hours. This will help simplify holiday pay calculations.
Allow the carryover of all statutory annual leave to the following year when an employee is unable to take their leave due to being on family related leave.
Where, as a result of taking a period of sick leave in any leave year, an employee is unable to take some or all of the annual leave to which they are entitled, the employee will be entitled to carry forward such untaken leave into the following leave year provided it is taken by the end of the period of 18 months from the end of the leave year in which the entitlement originally arose.
Give employees the right to carry over annual leave where they have not been given the 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 (use it or lose it).
Defining ‘normal remuneration’ for the purposes of holiday pay to include commission payments and other payments, such as regular overtime payments.
Revoking legislation introduced during the COVID pandemic allowing roll over of holiday for two holiday years in specified circumstances.
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.
Removing additional record keeping requirements relating to working hours that required almost all working hours to be monitored.
These changes should help to simplify these areas of employment law.
We will be updating any relevant policy documents for all client who use YourHR.space and updating relevant guidance and templates on YourHR.guide. These will be actioned/published on or before 1st January.
If you need guidance or advice on this matter or any other HR or employment law matter, please call Practical HR on 01702 216573 or email [email protected]