Prime Minister Sunak's Government and its civil servants are certainly picking up the pace when it comes to legislation and consultation. If the latter are still working from home, as was alleged by the Rt Hon Jacob Rees Mogg, then they are doing so effectively! Hot on the heels of the Minimum Service Level Bill announcement of last week (see our blog post on this here), last Thursday 12 January 2023, the Government announced that they are consulting on holiday entitlement for part-year and irregular hours workers. You can read the full announcement here. This is in response to the Brazel v Harpur Trust case decided by the Supreme Court in the summer of 2022. As you may remember, the court held that there was no mechanism in the Working Time Regulations 1998 (WTR) to pro-rata holiday entitlement for part-year workers and those with irregular hours which led to the anomaly of workers who worked for several weeks of the year being entitled to the same statutory paid holiday as their colleagues who worked for the whole year. You can read our past ebriefing on this to learn more.

What is the Government consulting on?

• Bringing back the 12.07% calculation for holiday entitlement (for those with irregular hours).
• Introducing a fixed holiday entitlement reference period.
• Introducing a new method to calculate how many hours constitute a day’s holiday.

What is the time frame?

• The consultation period ends on 9 March 2023.

Who can respond?

• The Government is asking anyone whether they are individuals, employers, representative groups etc. to respond.

What is going to change?

• Given the anomalies and costly headaches the Harpur Trust judgment has created, it is hardly surprising that the Government wants to return to the previous position where the 12.07% calculation was the accepted method for holiday accrual with part-year and irregular workers. 
• It is likely they will seek to amend the WTR but of course, that is subject to the Revocation Bill which will sunset all EU legislation, unless expressly protected, on 31 December 2023. We may see the Government either amend the WTR and expressly save that piece of legislation or sunset the current regulations and introduce new legislation to parliament which permits pro-rata holiday entitlement. That said, beyond 9 March 2023, we have no other concrete dates or time frames.

Where can I get more Information?

• You can read our latest ebriefing which sets out the consultation contents in more detail.

If you would like any more guidance or advice on holiday entitlement under the Harpur Trust case or following this consultation, please contact Hannah Bollard.