EU Law Reforms Confirmed: TUPE Consultation and Working Time Record-keeping Obligations

The Government has confirmed that it is going ahead with proposed changes to TUPE consultation obligations for small employers and to clarify employers’ record-keeping obligations under the Working Time Regulations 1998.

The confirmation comes in the Government’s response to its consultation on reforms to retained EU employment law, which also confirmed it will be making changes to holiday rights .

TUPE consultation

TUPE 2006 requires employers to inform and consult with appropriate representatives of employees affected by a business transfer or service provision change. If there are no appropriate representatives already in place, the employer must arrange elections. However, micro-businesses employing fewer than 10 employees are allowed to inform and consult directly with the affected employees if there are no existing appropriate representatives in place.

The Government has confirmed it will extend this flexibility to consult directly with affected employees to small businesses (those employing fewer than 50 employees), and to all businesses where fewer than 10 employees are transferring. Again, the ability to consult directly with affected employee will only apply where there are no existing appropriate representatives in place.

This change will apply to TUPE transfers taking place on or after 1 July 2024.

Working time record-keeping obligations

Under the Working Time Regulations 1998, employers are required to keep and maintain adequate records to show they are complying with the 48 hour average weekly working time limit and the working time limits for night workers. In 2019, a European Court ruling indicated that EU working time rules require employers to set up a system for recording each worker’s actual daily working time.

The Government considers this requirement to be disproportionate and has confirmed that it will amend the Working Time Regulations 1998 to make it clear that employers do not have to keep a record of the daily working hours of all workers, provided they are able to demonstrate compliance with the 48 hour average working time limit and the night worker limits without doing so.

The Regulations making this change are expected to come into force on 1 January 2024, subject to Parliamentary approval.