17/05/2023

NEW GB CONSULTATION: WORKING TIME & TUPE (May 2023)

Following on heels of GB Government’s announcement on Thursday 11 May 2023, on Friday 12 May 2023 the Department of Business and Trade published the Retained EU Employment Law Consultation on reforms to the Working Time Regulations, Holiday Pay, and the Transfer of Undertakings (Protection of Employment) Regulations

The Summary section states:

“These proposals do not seek to remove rights, but instead remove unnecessary bureaucracy in the way those rights operate…”

The consultation seeks views on three areas of retained EU employment law which could benefit from reform which are set out below.

Interestingly, it also confirms regulations that will not be reformed and further regulations (unrelated to TUPE and Working Time) that will be revoked (see below).

1.   Record keeping requirements under Working Time Regulations:

Removing need to record daily working hours of workers.

 The Consultation refers to the 2019 judgment of the Court of Justice of the European Union (Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE) ruled that employers must have an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured. That case held that records must be kept in relation to the:

• right to 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 GB Government believes that these record keeping obligations are disproportionate, and proposes to remove these requirements.

2.   Simplifying Annual Leave and Pay Calculations:

The Consultation document helpfully sets out the legal  difference (see Pages 16 and between the 4 weeks Working Time Directive Leave and 1.6 weeks additional leave provided under UK legislation ( The Working Time Regulations).

The GB Government proposes:

• Creating one singular pot of leave (a total of 5.6 weeks) so that the same rules apply to all; the Consultation propose setting out the minimum rate of holiday pay and arrangements for carrying over leave in legislation, alongside introducing rolled-up holiday pay as an additional option for calculating holiday pay.

• To define the rate of holiday pay in legislation. It asks views on whether the entire 5.6 weeks of leave should be paid at a worker’s normal rate of pay recognising that due to the administrative burden of having to pay leave at differing rates many employers already do that. Against that it is cognisance of the additional financial burden on employers

• Through the consultation, it seeks views on what should be included in the definition of ‘normal remuneration’ and believes it would be significantly challenging to write into legislation. The government is seeking views from employers and workers on how holiday pay is currently calculated and how they think it should be defined in legislation.

• Permitting rolled up holiday pay lawful. The right to paid annual leave is key to ensuring that workers remain adequately rested to protect their health and safety.

The Government is seeking views on making ‘rolled-up’ holiday pay lawful for all workers. Rolled-up holiday pay is a system where a worker receives 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. This proposal would give employers a choice between using the existing 52-week holiday pay reference period and rolled-up holiday pay to calculate holiday pay for their workers with irregular hours.

**This part is most likely to have most significant impact on businesses**

3.    Consultation requirements under TUPE

This includes a sensible proposal which will benefit small employers of allowing smaller employers to consult directly i.e. there will be no need to elect representatives.

Areas not being considered for reform

The Consultation document separately lists areas/rights that will be preserved and not considered for reform at this time.

These are:

• Maternity and Parental Leave etc Regulations; Paternity and Adoption Leave etc Regulations.

• Part-time & Fixed-term Employees Regulations;

• Agency Workers Regulations;

• Information & Consultation of Employees Regulations and Transnational Information and Consultation of Employees;

• Those aspects of the Working Time Regulations and TUPE Regulations that are not covered in Consultation.

It also identifies Regulations that will be revoked , which are:

• Posted Workers Regulations;

• Posted Workers (Agency Workers) Regulations;

• European Cooperative Society (Involvement of Employees) Regulations;

Territorial Jurisdiction

Not unexpectedly, it clearly states that the proposals do not represent the established policy position of Northern Ireland Executive or Assembly as employment law is devolved.

End Note

The Closing Date for responses is 7 July 2023.

Clearly from business perspective there are some sensible proposals being put forward but there is still a lack of detail on how the Government proposes to make the vexed issue of calculating holiday pay simpler. It is hoped that whatever approach it takes it does not instigate more litigation. And again our unique position in Northern Ireland means that we get to watch this Consultation in the hope that if Executive is restored, some of the learnings will influence the direction here.