The draft Employment Rights (Amendment, Revocation and Transitional) Regulations 2023 have been published and pick up the detail of the government's response to the retained EU employment law consultation and will be brought in on 1 January 2024.
They provide for the following:
- Employers will have to keep "adequate" records to demonstrate compliance with their obligations under the WTR in relation to the 48-hour week, 8-hour limit on night work etc. The regulations make it clear that there is no need to record a worker's daily working hours if the employer is able to demonstrate compliance without doing so.
- The introduction of rolled-up holiday pay.
- Leave for part year and irregular hours workers will, from 1 January 2024, accrue at the rate of 12.07% of hours worked and will be paid at the rate of 12.07% of pay in a pay period.
- Where the amount of annual leave that has accrued includes a fraction of an hour, the fraction is to be treated as zero if it's less than 30 minutes and one hour if it's 30 minutes or more.
- A 52-week reference period is to be used for calculating accrual of annual leave.
- The elements of remuneration that should be included in calculations of a week's pay for holiday pay purposes will remain the same so employers can continue with their current payroll systems.
- There will be a right to carry over annual leave in situations including sickness, a failure to recognise employment status, failing to afford the right to paid annual leave, and as a result of being unable to exercise the right as a result of statutory leave.
- 31 March 2024 is the backstop for the carry over of leave under the Covid 19 provisions.
- Small businesses (with fewer than 50 employees) will be able to inform and consult directly with employees in respect of TUPE, and this flexibility will be extended to all businesses where a small transfer of fewer than 10 employees is proposed.
For more detail on these changes please refer to our recent bulletin, 'The government's response to the retained EU employment law consultation is out!'
In the meantime another set of draft regulations have been published, the draft Equality Act (Amendment) Regulations 2023. These regulations will amend the Equality Act 2010 (EqA 2010) to reproduce in domestic law certain discrimination protections derived from EU law that would otherwise have fallen away under the Retained EU Law (Revocation and Reform) Act 2023. These include the following:
- The "single source" test for establishing an equal pay comparison. Section 79 of the EqA 2010 will be amended to provide that an equal pay comparison can be made where there is a single body that is responsible for setting out or continuing the terms on which the claimant and comparator are employed, and which is in a position to ensure equal treatment between them.
- The right to claim indirect discrimination on the basis of association with a protected characteristic. The draft regulations will provide that indirect discrimination can be established if the claimant is put (or would be put) at "substantively the same disadvantage" as persons who share the relevant protected characteristic.
- Schedule 1 of the EqA 2010 will be amended to provide that the reference in section 6 of the EqA 2010 to a person's ability to carry out normal day-to-day activities is to be taken as including a reference to the person's ability to participate fully and effectively in working life on an equal basis with other workers.
Other protections to be preserved by the Regulations include specifying that less favourable treatment on the ground of breastfeeding constitutes direct discrimination on the ground of sex; that women are protected from unfavourable treatment after they return from maternity leave where that treatment is in connection with the pregnancy or a pregnancy-related illness occurring before their return; that women are protected against pregnancy and maternity discrimination in the workplace where they have an entitlement to maternity leave which is equivalent to compulsory, ordinary or additional maternity leave; and that employers may be liable for conduct equivalent to direct discrimination if a discriminatory statement is made regarding recruitment, even when there is not an active recruitment process underway.
