Changes to UK’s working time laws ‘just conjecture’, but watch this space

Out-Law News | 21 Jan 2021 | 11:43 am |

Sue Gilchrist tells HRNews about potential legislative and case law developments in the year ahead

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  • Transcript

    Is the government planning to dilute UK workers’ rights, and in particular the 48-hour limit on the working week? That is the question doing the rounds after an article appeared in the FT last Thursday. It subsequently appeared on the FT's twitter feed and was circulated widely on social media at the end of last week. The Business Secretary Kwasi Kwarteng was quick to respond, tweeting ‘we are not going to lower the standards of workers’ rights’. That was then picked up by the mainstream media the following day and has been the subject of much debate since.  The BBC quotes the FT in saying the proposals were being drawn up with the approval of Downing Street, hadn't yet been approved by ministers or cabinet and were, at this stage, just proposals. So there is no formal government position on this yet.

    The timing is interesting because the government has just signed a trade deal with the EU which includes ‘level playing field provisions’ which, on the face of it, prevents them from reducing employment rights in this way. But when it comes to employment law, the agreement is not very prescriptive and specifically acknowledges that both parties are free to set their own policies and priorities, hence why this story has been running in the past few days. You may have seen it in the HR press - Personnel Today covered it in some detail and we noticed Rachel Suff, employee relations adviser at the CIPD, makes a good point when she says that quite apart from what the government may or may not be planning, the judges may have a say in this because there has been a lot of complex litigation in recent times in this area and some of it is still running. She doesn’t specify which cases she has in mind but we can tell you about two of them which are listed to be heard by the Supreme Court in June. One is called Flowers, the other is Agnew. Sue Gilchrist has been tracking both, as well as the FT’s story, and she joined me by video-link from Glasgow. I put it to Sue that it’s an interesting development: 

    Sue Gilchrist: “Yes, it's really interesting isn't it, Joe. lt does tend to suggest where the government's intentions might be leaning with regard to holiday pay so we will watch that with interest, but the other idea we have to account for is changes and decisions in the courts. There are two really significant holiday pay cases coming to the Supreme Court in June this year. The first of these relates to ambulance workers, Flowers, and it was about whether their voluntary overtime should be included in holiday pay calculations. The Court of Appeal said it should be where it's regularly worked, so it becomes part of normal pay, so if the Supreme Court follows that that would continue to be the law as it stands in the UK for the calculation of holiday pay and that has followed a whole line of cases. But the Supreme Court could decide that it doesn't intend to follow that decision, it could step away from what has been the line of thinking since the cases first went to the European Court a good number of years ago now, and the Supreme Court does have the power to depart from the European Court's decision so it could draw a line in the sand and take us in a new direction. The other case is a Northern Irish case, Agnew, which was about whether or not a three month gap in a chain of deductions claims for unpaid holiday pay was valid and whether that would break the chain of deductions. There was a GB case called Bear Scotland where it was decided that a three month gap would break the chain of deductions and that limited the amount that an employee could claim for backdated holiday pay but the Northern Irish Court of Appeal said no we don't agree with that and it is now going before the Supreme Court to decide whether or not the Supreme Court agrees with Northern Ireland on that or with the decision in GB, and that Supreme Court decision is binding across the whole of the UK so, again, it will be interesting to see how that develops. Whatever the Supreme Court's decision, the UK government might decide to legislate. It already has applied a limitation to the amount that can be claimed in relation to backdated holiday pay. Claims from July 2015 onwards can only go back two years, and there's a limit there, and the government might take a stance that it would limit it again, if the Supreme Court does follow the overtime position in Flowers or decides that the three month gap doesn't break the chain, the government might follow a favourable route for employers, but we'll need to wait and see that. I think the other layer on top of that which is also interesting is how Brexit impacts on the government's ability to make these changes and will those changes affect the level playing field to a material extent that we might see the EU say that we weren't sticking to the trade and cooperation agreement and try to go for arbitration to suggest that we couldn't change working time rules in that way. That is all conjecture for now but it is another layer that that adds to the debate.”

    Those two cases, Flowers and Agnew, both feature in Sue’s Horizon Scanning article where she flags what to watch out for in the coming weeks and months. She highlights eight cases which will be heard during the course of 2021. You can find that article and all the latest developments on the Outlaw website.