How the Employment Rights Bill will affect zero hours, casual and agency work

Following the government’s announcement of the new Employment Rights Bill, which is expected to come into force in April next year, this is the fourth instalment in our five-part blog series exploring the key changes to expect.

In this post, we focus on the provisions affecting zero-hours, casual and agency workers. As with other elements of the Bill, these proposals are still being debated in Parliament and may be subject to change.

Duty to offer guaranteed hours

In an attempt to stamp out exploitative zero hours contracts, employers must offer a guaranteed hours contract that reflects the hours a qualifying worker regularly works over a reference period. This offer must be made at the end of every reference period (expected to be 12 weeks) until such time as the worker is no longer a “qualifying” worker and this duty will apply to all workers, not just employees.

It remains uncertain how this will apply to seasonal workers and the new day-one right to claim unfair dismissal. It is also unclear whether offering a new guaranteed hours contract with fewer hours than before would fall within the scope of the fire and rehire protections.

Finally, it is entirely unclear whether “on-call” services such as firefighting staff will be considered excluded from these provisions for practical reasons.

Failure to comply with this duty will give rise to a potential Employment Tribunal claim, and this duty can only be opted out of through contractual collective agreements.

Non-avoidance duty

Alongside the above obligation, employers will have a duty to not intentionally avoid giving enough or regular hours to circumvent their employees becoming “qualifying” workers.

As above, failure to comply with this duty will give rise to a potential Employment Tribunal claim, and this duty can only be opted out of through contractual collective agreements.

Duty to provide notice of shifts

There are certain types of workers who will be entitled to “reasonable” notice of their shifts under new rules. Those are:

• Shifts under a zero-hours contract
• Shifts under contract where the dates and times are not contractually provided
• Shifts outside those provided by contract.

Essentially the duty of notice therefore applies to all work shifts outside of those specifically mentioned in a contract of employment. It is not yet determined what “reasonable notice” means, but this will likely be what is reasonable in all the circumstances.

The duty will not apply where an employee requests a shift and the employer agrees, unless the employer then goes on to cancel or alter the shift, in which case that information must be provided.

Where employees are working additional hours on top of an existing shift, the extension of hours will be treated as a new separate shift.

Agency workers

All of the above provisions relating to zero-hours workers will be extended to agency workers in the same way, though there are additional provisions clarifying who the responsible, and therefore, liable party is in a dispute.

The duty to make a guaranteed hours offer lies with the end-hirer and not the work-finding agency, and if the employee accepts the contract then they will cease to be employed by the agency and instead will be deemed to have a direct employment relationship with the company as a worker.

The anti-avoidance provisions apply to both the end-hirer and the work-finding agency, depending on which party is deemed to have limited the hours worked.

The responsibility for notification of shifts is shared between the end-hirer and the work-finding agency. Responsibility for compensation to agency workers for cancelled shifts will lie with the work-finding agency, regardless of actual fault.

Associated dismissals

To line up with the additional duties on employers listed in this post, it will also become automatically unfair to dismiss an employee because they accepted or refused a guaranteed hours offer.

There is also an associated right to not be subjected to detriment for the same reasons.

How Harrowells can help

At Harrowells we understand that for both employers and employees this is an uncertain time where many questions and clarifications may be needed. We always aim to be on hand to answer any questions for our existing clients and are open for any new clients wanting to seek advice on any of these matters.

If you feel you are involved in a situation where any of the above scenarios are ongoing and you need guidance through the process, please do not hesitate to contact Harrowells for assistance or a quote.

If any claims arise as a result of these changes, we are also available to assist with any settlement negotiations or litigation action.