This part of the Employment Rights Bill is a minefield. The government’s aim is to create some kind of certainty and stability for zero-hours workers, and to prevent exploitative contracts. But it’s complex and pretty unattractive for employers.

This week’s blog is shorter than usual as we get to the bottom of the guaranteed hours provisions using a series of flowcharts we’ve prepared as a guide:

  1. guaranteed hours flowchart
  2. notice of shifts flowchart
  3. cancellation of shifts flowchart

Clause 1 – guaranteed hours

If a worker is working under a zero-hours contract, the employer is required to offer them a ‘guaranteed hours contract’. That contract should reflect the number of hours the employee worked during the previous reference period. ‘Reference period’ is not defined in the Bill, Labour originally proposed a period of 12 weeks but that has not been confirmed.  The Bill also refers to the ‘specified day’ but again, without defining what this day is. It is all very unclear.  There is no requirement that employees have to accept the offer, just that it should be made.

The right to be offered a guaranteed hours contract applies not just to zero hour contracts, but also to minimum hours’ contracts (those which specify a low number of hours).  This will prevent employers being able to ‘get around’ the problem by replacing zero hour contracts with ‘one hour contracts’ or ‘two hour contracts’. Again, it is unclear what will qualify as a minimum hour contract.

If the employer doesn’t offer a ‘guaranteed hours contract’, the worker can bring a tribunal claim to recover any financial losses sustained as a result of not offering it. The claim will be capped, but as yet, we don’t know at what level.

Clauses 2 and 3 – notice and cancellation of shifts

The Bill also includes provisions obliging employers to provide reasonable notice of shifts and shift changes or cancellations to workers working irregular shift patterns or under zero-hours contracts.

This will require secondary legislation to set out reasonable notice periods, but again, as yet we have no details as to what those periods are likely to be.  The notice in the regulations will be ‘presumed’ to be reasonable, not ‘deemed’ to be reasonable.  That means that an employer will be able to argue shorter notice was reasonable, and likewise, workers will be able to argue that longer notice would have been reasonable.

Workers will also have a right to payment of a ‘specified amount’ every time a shift is cancelled or moved at short notice. We await further details on what amounts to short notice. We also don’t know how much the ‘specified amount’ will be, but we do know it will be capped at the amount the worker would have been paid if they’d worked the shift.

These provisions are likely to make zero-hours contracts much less appealing for employers. But the real impact will depend on the specific details that are yet to come.

—————————————————————————————————————————

Members of the HR Inner Circle can download the recording, workbook and transcript from Daniel Barnett’s half-day seminar delving into all the details of the Employment Rights Bill here: https://members.hrinnercircle.co.uk/content/employment-rights-bill