William Clift and Daniel Parker: Brexit and the working time directive – an opportunity for reform?

William Clift

The government has been keen to stress that workplace rights will continue largely as is post-Brexit, including European Union-derived developments such as the working time regulations (WTR).

The WTR has embedded the EU’s working time directive (WTD) in UK law, and so, in principle, departure should not have an immediate impact; Brexit may, however, subject to any transition period, allow Parliament to amend or repeal these often complex and controversial regulations.

WTR rules surrounding holiday and sick leave have been a particular bone of contention for many years. For example, employees who fall ill while on holiday are entitled to claim those days back, and take them at a later date. Furthermore, employees continue to accrue rights to annual leave under the WTR while being on long-term sick leave, providing an opportunity for these rules to be abused.

There are further examples of the WTR placing a potentially unfair cost on businesses.  Compulsory and voluntary overtime, incentive bonuses and results-based commission payments must now be taken into account when calculating an employee’s rate of pay during WTR-mandated annual leave, which, some say, unfairly rewards employees, and benefits those who manipulate the timing of their leave.

Likewise, depending on when they take their leave, the WTR may entitle part-time employees who only work for part of the year to the same holiday pay as those who work a full year, burdening employers and creating arbitrary distinctions.

We are yet to understand the government’s priorities post-Brexit. However, there appears to be some political will to amend the WTR. This may be welcome if it results in a simpler and more predictable system for employers and employees alike.

William Clift (pictured) is solicitor at Winckworth Sherwood and Daniel Parker is trainee solicitor at Winckworth Sherwood