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HR Newsflash - Brexit changes to Employment Law

View profile for Catherine Almeida
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In 2023, we kept a watching brief over possible developments in employment law. We anticipated that towards the end of 2023 (with a transition period up to mid-2026), regulations derived from EU law (such as the Working Time Regulations) would be removed from UK law unless they are written into new legislation.

However, the government have recently announced in a written statement to parliament, that the position is being reversed so that EU law will remain binding in the UK unless it is expressly repealed. A list of the retained EU laws that the government intends to revoke on 31 December 2023 will be provided, anything not on that list will remain valid.

While the government has yet to announce timescales it has announced the following future developments:

Holidays - Currently entitlement to holidays is based on 1.6 weeks which is an entitlement that was incorporated in the UK from Europe, and an additional 4 weeks from the UK (making a total of 5.6 weeks or 28 days). There is an intention by the government to merge the two entitlements into one entitlement. In practice, this could mean that the calculation of holiday pay reverts to the previous method of calculation which does not include overtime and commission.

It is also the intention that the practice of employers paying rolled-up holiday pay will become legal which could be particularly beneficial for those employers who use zero-hour or casual workers.

TUPE - Currently micro-businesses (those with fewer than 10 employees) are not required to consult with appointed representatives when there is a business transfer/service provision change, instead they can consult with staff directly. The government intends to extend this micro-business exemption to transfers, when there are fewer than 50 employees in the business and fewer than 10 individuals who are to transfer. In practice, this is only likely to have an impact where there is a transfer of part of a business.

Separately to developments related to Brexit, the government has announced an intention to introduce new legislation to restrict the duration of non-compete restrictive covenants to three months after termination of employment. The intended new legislation will not affect non-solicitation clauses or confidentiality clauses. No timescale has been provided for this change to be implemented.

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