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Employment Legislation Update

Two recent key changes in employment law will begin to impact employees and workers this month: first, the way annual leave is calculated for some employees and workers is changing, and second, employees’ entitlement to make flexible working requests has been bolstered.

In the case of Harpur Trust and Brazel [2022] UKSC 21 the Supreme Court highlighted an anomaly in the calculation of annual leave for those working variable hours on a part-time basis which put them at an advantage compared with those working full-time hours.  Mrs Brazel’s employer had assumed it could implement its own method of calculation rather than the standard method set out in the legislation in order to achieve a ’just’ outcome which meant that she did not receive a more generous provision than her full-time counterparts.  The Supreme Court concluded that only parliament could authorise an alternative calculation method and until such an alternative was introduced into law, workers such as Mrs Brazel were entitled to the beneficial calculation which left them proportionately better off than full-time workers.  The amendments to the Working Time Regulations seek to resolve that anomaly and eliminate the unfairness.

The changes identify part-year workers, which category will include seasonal and term-time workers whose contract covers periods when they do not work and do not get paid, and irregular hour workers, defined as workers whose hours within a pay period (eg: a month for monthly paid workers) are “wholly or mostly variable”.  The position for workers who are not irregular hour or part-year workers remains the same – in the first year of employment, workers receive one-twelfth of the statutory entitlement on the first day of the month.  Subsequently, workers will receive their entitlement based upon the proportion of the week which they are required to work.

By contrast, for leave years beginning on or after 1st April 2024, holiday entitlement from day one for irregular hour and part-year workers will be calculated as 12.07% of actual hours worked in a pay period.  This is an important clarification for both employers and workers and promotes transparency and fairness.  Many employers, like Harpur Trust, were already using this calculation but its codification into the Working Time Regulations from now on provides that they do so not in breach of the WTR but pursuant to it.

From 6th April 2024 the long awaited ‘day one’ right to make a flexible working request comes into force.  Previously a period of 26 weeks had to pass before employees acquired the right to make a request for flexible working.  In addition only one request could be made per year, and a response had to be provided by employers within 3 months.  The changes now in force allow employees to make two requests annually and require employers to respond within 2 months.  Employers will need to put in place streamlined procedures for considering requests which are likely to increase following this development but the provisions are likely to be viewed positively by employees who will now be able to make requests as soon as they take up their roles.


Written by Dr Joanna Kerr.

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