· Comment

Retained EU Law repeals are simply an administrative clear-up

The government's intention to repeal some employment law provisions as part of the Retained EU Law Bill has caused a stir among employment lawyers and HR professionals but the reality is, for the majority of businesses, these changes will not make any difference.

Last week the UK government announced that, instead of scrapping all EU-derived laws by the end of the year as part of a bill put forward by Jacob Rees-Mogg in 2022, it would instead publish a list of 600 pieces of legislation that are due to be revoked.

On 10 May it also published the Smarter regulation to grow the economy policy paper outlining plans for related reform that would help reduce the burden on British business.

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Firstly, the announcement that government will merge the ordinary statutory holiday entitlements (four weeks) with additional statutory holidays (1.6 weeks) in the Working Time Regulations is simply administrative tidying up.

Basic entitlement remains at 5.6 weeks and, let’s face it, almost all businesses and quite a few HR professionals didn’t realise there was a difference (in the same way as most don’t distinguish between ordinary and additional maternity leave).

Secondly, ending the record-keeping requirements under the Working Time Regulations is also a damp squib. Most firms have never bothered to do this and those that do tend to have it as part of time recording systems that they use for other purposes.

The proposal for collective consultation under TUPE when an employer has fewer than 50 employees in total and the transfer involves nine people or fewer has limited application. Even if technically required, in practice this rarely happens and there is already an exemption for micro-firms.

The plan to end the ban on ‘rolled-up holiday pay’ potentially has slightly more impact, although in my experience companies that used this tended to only do so as part of a relatively short, fixed-term contracts or for those working non-traditional contracts such as term-time hours. Individuals receive the same money either way.

Some have raised concerns that it might discourage people from actually taking holidays, and that those who work variable hours might find their holiday element incorrect since commission, and overtime, etc might not be fully incorporated.

But the question is how many employers will change their current systems. To be honest, some never moved away from rolled-up pay either despite the fact it is ruled unlawful.

The proposals to limit non-compete clauses to three months is an interesting one but only affects a limited number of sectors or very senior roles. Unlike the other changes it will require a new Act of Parliament, so it is two years away at best, if it ever happens.

Perhaps it will form part of the new Employment Bill the government has promised since 2017 but which, like Godot, never arrives.

A cynic might suggest these changes are more of sop to the Brexit wing of the Conservative party, to demonstrate that we are getting rid of EU bureaucracy while targeting measures that will have no or limited impact on the vast majority of business or workers.

Simon Jones is director of Ariadne Associates