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One-sided flexibility consultation

Proposed reforms may result in flexible workers benefiting from new rights and protections if they lose out on work.

Building on the recommendations in the Good Work Plan, a consultation has been published asking for views on proposals to address the issue, identified by the Low Pay Commission (LPC), of one-sided flexibility in the labour market. In 2018 an LPC report found that shift cancellations and short notice of work schedules were significant issues, especially for low-paid workers. The 2017 Taylor Report had recommended the introduction of a higher National Minimum Wage (NMW) rate for hours that are not guaranteed as part of a worker’s contract as a way of addressing this one-sided flexibility. The LPC report however did not back this idea (nor the idea of banning zero-hours contracts) and this consultation confirms that the government will not take such a proposal forward. Instead, the LPC recommended an alternative approach comprising:

  1. a right to switch to a contract which reflects the normal hours worked
  2. a right to reasonable notice of work schedule
  3. compensation for shift cancellation or curtailment without reasonable notice, and
  4. information for workers

As regards 1, this consultation confirms that legislation will be introduced to provide a right for all workers to switch to a more predictable work pattern, enforced via the employment tribunal system. Under the proposed rules, aimed primarily at shift workers and those on zero-hours contracts, workers regularly undertaking a certain number or pattern of hours could have this written into their contract. Any employer refusing to change a contract would be required to justify their decision based on conditions to be set out in statute.

As regards 4, legislation is being enacted to extend the right to a written statement to all workers, as well as employees, and to expand the content of the written statement.

This consultation (which closes on 11 October 2019) focuses on the LPC’s proposals 2 and 3.

Right to a reasonable notice of work schedule

The consultation seeks views on:

  • what would be defined as ‘reasonable notice’ of work schedules, whether this would vary between different types of work or contexts and what working hours should be in scope
  • what the impact would be of the introduction of the right to reasonable notice of work schedules
  • whether the right to a reasonable notice of work schedules should be guaranteed from the start of employment, or whether an individual would need to work for a certain amount of time before becoming eligible and, if so, how long
  • whether government should set a single notice period for work schedules which applies across all employers, or whether certain employers/sectors should be allowed some degree of flexibility from the ‘baseline’ notice period and, if so, which employers/sectors
  • what would be an appropriate ‘baseline’ notice period and degree of flexibility
  • whether there are any instances where reasonable notice of a work schedule would not need to be given
  • how reasonable notice of a work schedule would be recorded, what the penalty for non-compliance should be and what should be contained in a statutory Code of Practice

Compensation for shift cancellation or curtailment

The consultation seeks views on:

  • whether shifts or hours of work are cancelled by employers at short notice and, if so, why, and how often and on what notice
  • whether workers receive compensation if shifts or hours of work are cancelled
  • whether compensation varies by different types of work/worker, and
  • any best practice examples from areas of industry where workers receive compensation for shifts or hours of work which are cancelled

If a worker has their hours cancelled with less than a (as yet to set) amount of notice, the employer would be liable to pay a level of compensation, irrespective of whether the hours are replaced. As regards the level of compensation, the consultation asks for views on whether this should be:

  • the value of the shift/hours in question
  • a worker’s appropriate NMW rate multiplied by their scheduled number of hours cancelled, or
  • a multiple of a worker’s appropriate NMW rate

Views are also asked on whether this should be a Day 1 right or subject to a qualifying period of employment.