The Working Time (Amendment) Regulations 2007

Statutory Instruments

2007 No. 2079

TERMS AND CONDITIONS OF EMPLOYMENT

The Working Time (Amendment) Regulations 2007

Made

19th July 2007

Coming into force

1st October 2007

The Secretary of State makes the following Regulations in exercise of the powers conferred by section 13 of the Work and Families Act 2006(1).

In accordance with section 13(7) of that Act, a draft of these Regulations has been laid before Parliament and approved by a resolution of each House of Parliament.

Citation, commencement and extent

1.—(1) These Regulations may be cited as the Working Time (Amendment) Regulations 2007.

(1) These Regulations shall come into force on 1st October 2007.

(2) These Regulations extend to Great Britain only.

Amendment to the Working Time Regulations 1998

2.—(1) The Working Time Regulations 1998(2) shall be amended in accordance with paragraphs (2) to (11).

(2) After regulation 13 (entitlement to annual leave), insert—

“Entitlement to additional annual leave

13A.—(1) Subject to regulation 26A and paragraphs (3) and (5), a worker is entitled in each leave year to a period of additional leave determined in accordance with paragraph (2).

(2) The period of additional leave to which a worker is entitled under paragraph (1) is—

(a)in any leave year beginning on or after 1st October 2007 but before 1st April 2008, 0.8 weeks;

(b)in any leave year beginning before 1st October 2007, a proportion of 0.8 weeks equivalent to the proportion of the year beginning on 1st October 2007 which would have elapsed at the end of that leave year;

(c)in any leave year beginning on 1st April 2008, 0.8 weeks;

(d)in any leave year beginning after 1st April 2008 but before 1st April 2009, 0.8 weeks and a proportion of another 0.8 weeks equivalent to the proportion of the year beginning on 1st April 2009 which would have elapsed at the end of that leave year;

(e)in any leave year beginning on or after 1st April 2009, 1.6 weeks.

(3) The aggregate entitlement provided for in paragraph (2) and regulation 13(1) is subject to a maximum of 28 days.

(4) A worker’s leave year begins for the purposes of this regulation on the same date as the worker’s leave year begins for the purposes of regulation 13.

(5) Where the date on which a worker’s employment begins is later than the date on which his first leave year begins, the additional leave to which he is entitled in that leave year is a proportion of the period applicable under paragraph (2) equal to the proportion of that leave year remaining on the date on which his employment begins.

(6) Leave to which a worker is entitled under this regulation may be taken in instalments, but it may not be replaced by a payment in lieu except where—

(a)the worker’s employment is terminated; or

(b)the leave is an entitlement that arises under paragraph (2)(a), (b) or (c); or

(c)the leave is an entitlement to 0.8 weeks that arises under paragraph (2)(d) in respect of that part of the leave year which would have elapsed before 1st April 2009.

(7) A relevant agreement may provide for any leave to which a worker is entitled under this regulation to be carried forward into the leave year immediately following the leave year in respect of which it is due.

(8) This regulation does not apply to workers to whom the Agricultural Wages (Scotland) Act 1949(3) applies (as that Act had effect on 1 July 1999).”

(3) After Regulation 26 insert—

“Entitlement to additional annual leave under a relevant agreement

26A.—(1) Regulation 13A does not apply in relation to a worker whose employer, as at 1st October 2007 and by virtue of a relevant agreement, provides each worker employed by him with an annual leave entitlement of 1.6 weeks or 8 days (whichever is the lesser) in addition to each worker’s entitlement under regulation 13, provided that such additional annual leave—

(a)may not be replaced by a payment in lieu except in relation to a worker whose employment is terminated;

(b)may not be carried forward into a leave year other than that which immediately follows the leave year in respect of which the leave is due; and

(c)is leave for which the worker is entitled to be paid at not less than the rate of a week’s pay in respect of each week of leave, calculated in accordance with sections 221 to 224 of the 1996 Act, modified such that—

(i)references to the employee are references to the worker;

(ii)references to the employee’s contract of employment are references to the worker’s contract;

(iii)the calculation date is the first day of the period of leave in question; and

(iv)the references to sections 227 and 228 do not apply.

(2) Notwithstanding paragraph (1), any additional annual leave in excess of 1.6 weeks or 8 days (whichever is the lesser) to which a worker is entitled, shall not be subject to the conditions of that paragraph.

(3) This regulation shall cease to apply to a worker from the day when an employer ceases to provide additional annual leave in accordance with the conditions in paragraph (1).

(4) This regulation does not apply to workers to whom the Agricultural Wages (Scotland) Act 1949 applies (as that Act had effect on 1 July 1999).”

(4) Regulation 13(6) shall be omitted.

(5) In regulations 14(1)(b) and (3), 15(1), 16(1) and paragraph 1(a) of Schedule 2, after “regulation 13” insert “and regulation 13A”.

(6) In regulations 15(2)(a) and 15A(1), after “regulation 13” insert “or regulation 13A”.

(7) In regulation 15A(1), after “under paragraph (2)” insert “or (2A)”.

(8) In regulation 15A(2), after “For the purposes of paragraph (1),” insert “in the case of workers to whom the Agricultural Wages (Scotland) Act 1949 applies,”.

(9) After regulation 15A(2), insert—

“(2A) Except where paragraph (2) applies, for the purposes of paragraph (1), leave is deemed to accrue over the course of the worker’s first year of employment, at the rate of one-twelfth of the amount specified in regulation 13(1) and regulation 13A(2), subject to the limit contained in regulation 13A(3), on the first day of each month of that year.”

(10) In regulation 18(2) after “13” insert “, 13A”.

(11) In regulation 30(1)(a) for paragraph (i) substitute—

“(i)regulation 10(1) or (2), 11(1), (2) or (3), 12(1) or (4), 13 or 13A;”.

Pat McFadden

Minister of State for Employment Relations and Postal Affairs

Department for Business, Enterprise and Regulatory Reform

19th July 2007

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations, made under a power contained in section 13 of the Work and Families Act 2006, amend the Working Time Regulations 1998. These Regulations apply to Great Britain only. The subject matter of the Agricultural Wages (Scotland) Act 1949 is devolved to the Scottish Parliament and no provision is made in these Regulations in respect of workers to whom that Act applies.

The Regulations add a new regulation 13A to the Working Time Regulations to increase the annual leave entitlement from 4 weeks to 5.6 weeks. Regulation 13A(2) provides that workers become eligible for the first additional 0.8 weeks from 1 October 2007; for the second 0.8 weeks from 1st April 2009.

Regulation 13A(3) caps the aggregate entitlement provided for by regulations 13 and 13A at 28 days. Regulation 13A(6) provides that leave may not be replaced by a payment in lieu except where the employment is terminated or for an initial transitional phase. Regulation 13A(7) provides for the possibility of limited carry over of the additional annual leave in that a relevant agreement may provide for leave to be carried forward into the leave year immediately following the leave year in respect of which the entitlement is due.

A new regulation 26A is added to the Working Time Regulations to provide that regulation 13A shall not apply to a worker whose employer already provides each worker employed by him with an entitlement to additional annual leave of 1.6 weeks or 8 days (whichever is the lesser), as at 1 October 2007, by virtue of a relevant agreement that satisfies the conditions in paragraph (1). This regulation does not apply to any additional leave the employer provides his workers above 1.6 weeks.

Regulation 2(4) revokes regulation 13(6). Regulation 2(5) to (11) contains consequential amendments to other provisions in the Working Time Regulations, to add additional leave provided for under regulation 13A to the existing regime of the Working Time Regulations in respect of compensation payable on termination of employment, leave during the first year of employment, notice requirements in respect of when leave may be taken, entitlement to pay for leave, sectors partially or wholly excluded, remedies for breach of the provision and provision for those workers employed in agriculture.

A Regulatory Impact Assessment has been produced and is available at http:www.berr.gov.uk/employment.