Draft Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023

Mark Garnier Excerpts

Tuesday 5th December 2023 General Committees

[Stella Creasy (Walthamstow) (Lab/Co-op)]

It is a pleasure to serve under your chairmanship this afternoon, Mr Efford, as we discuss a very important piece of legislation—I believe it is the first statutory instrument to come forward under the Retained EU Law (Revocation and Reform) Act 2023. The Minister says that there are countless pieces of bureaucracy retained from our relationship with Europe that the Government want to get rid of. My hon. Friend the Member for Ellesmere Port and Neston has done an admirable job in deconstructing the entirety of this statutory instrument. I have a few simple questions that I suspect my constituents, many of whom will be affected by the draft regulations, because many of them are in low paid, zero-hours, flexible work.

[Mark Garnier (Wyre Forest) (Con)]

I hope the hon. Lady will forgive me for making an obvious point, but while I am delighted to be accompanied by many Government Members, I am wondering whether her Opposition colleagues have better things to do than to come here to discuss this “very important piece of legislation”?

[Stella Creasy]

I wonder about all the hon. Gentleman’s colleagues of the female persuasion, who also appear to be missing from the Committee. That matters because I have some very simple questions for the Minister about the regulations, and it is rather notable that I am the only woman here to speak. The hon. Gentleman wants to play games; I want discuss the practicalities of the legislation and how it will affect the daily lives of our constituents. I hope we all recognise employment protections matter. After all, the reason why we have employment protections is that, although there are some brilliant employers who work very closely with our constituents to make sure they get the best out of them, unfortunately some employers are exploitative and not the kind of people we want to encourage. We have these rules because exploitation does not stop at our borders, and one of the reasons we signed up to common frameworks was our recognition that those bad employers could spread bad practice. Now that we have left the European Union and the protection that came from those frameworks, I have some questions for the Minister.

I welcome what the Minister said about the continuation of the rights under the Moreno Gómez case to do with taking full holiday entitlement outside of one’s maternity period, but he will recognise that that case is relevant to his introduction of rolled up holiday pay. There was a very good reason why that court case ended in the decision that it was not fair to ask employees to take rolled up holiday pay. Women taking maternity leave were particularly affected by that and the impact of having their normal holiday pay calculation being affected by taking maternity pay.

I know the Minister did not talk specifically about that, but could he clarify the provision? There are women who work term-time hours or who are on zero-hours contracts who may now find themselves wondering what it might mean for them if their employer decides to extend rolled up holiday pay. Unfortunately, some employers were still doing this, but it was illegal and therefore people had rights; now, they will not have a right to resist it.

That brings me to my second question for the Minister. The regulations will be brought in from January next year. If our constituents are now being told that they are going to have rolled up holiday pay, what right do they have to challenge that if they feel it is not in their interests? My hon. Friend pointed out this is a transfer of £250 million a year from employees to employers because, frankly, rolling up means missing out on the hours that people are working. That is why the European Court of Justice felt it not fair to enforce the policy. What rights do employees who signed contracts on the basis that they were not going to have rolled up holiday pay and who are now facing it have? Will the Minister set those out?

What legal challenges is the Minister expecting? After all, one of the reasons why good employers do not use rolled up holiday pay is that if they get the calculation wrong, they leave themselves open to legal challenge and having to expend the amount of time and effort and energy that that takes up. It is better to have a process that records people’s entitlements as they go along, even if it is a little bit more complicated, than to be landed with problems further down the line, whether from someone going on maternity leave, or from somebody who ends up working a lot more days than was perhaps intended in their rolled up holiday pay, because they are on a zero-hours contract and something happens—like Christmas. It is a great time of year for the Government to be looking at taking money out of the pockets of employees and putting it back into employers’ pockets. People who work extra hours on zero-hours contracts might find they are entitled to more holiday, but a rolled up holiday pay policy will not cover that. What is the process for resolution?

We have talked a lot about our concerns for employees, but what about employers? If they get it wrong, what protection do they have under the draft regulations? I think that really speaks to the minister’s understanding. Why did the Court come to that decision? It was not that rolled up holiday pay was seen as a terrible European plot; it was recognised that it probably was not in people’s best interests because it created more problems than it resolved. This Government have taken a different approach. Did the Minister read the original judgment and decision? Why does he feel that this is in the better interests of the British public, who will now have to deal with the complexities the policy will introduce and deal with the inequality in power between themselves and their employer? Why does he disagree with the European judges who felt that, overall, this practice was not in the best interests of either employers or employees.

I hope the Minister understands where these questions are coming from. It is our surgeries that people will come into saying, “Hang on a minute! I’ve lost a day or possibly even weeks of holiday pay as a result of changes that you as an MP didn’t really get a chance to vote for.” This is being presented to us as a “like it or lump it” thing. I am sure that my colleagues, male and female, will get used to that, because the retained EU law Act has given the Government sweeping power to do just that and affect our constituents lives in these very practical, and probably not very welcome, ways in the year ahead.