Shift workers – a new right to reasonable notice

As we have reported previously, the UK Employment Rights Bill (the 'Bill') is the most ambitious set of employment law reforms for more than a generation covering (amongst other things) unfair dismissal, fire and rehire and collective redundancies.

The Government has begun consulting on aspects of the reforms, anticipating that the majority of them will take effect no earlier than 2026, giving employers time to plan.

The Bill will entitle certain workers to reasonable notice of shifts that their employer requests or requires them to work, as well as reasonable notice of shift changes or cancellations.  The Government's Impact Assessment indicates that 8.3% of the workforce in the UK (2.4 million people) could be affected by these changes.  Here, we consider the new rights in greater detail.

Who is protected?

To be protected, a worker must fall within certain categories.  They will include those on zero hours contracts, as well as workers who have some guaranteed work but whose contracts do not specify the days or times they must work, or in accordance with what pattern of days and times.  

Like other areas of the Bill, further detail will be fleshed out in future regulations - but the drafting suggests that it is seeking to protect those on low pay or who have a low number of guaranteed hours.  

These shift-related rights do not currently extend to agency workers, but the Government has commenced consultation about this.  Full details can be found here.  The consultation remains open until 2 December 2024.

What are the new rights? 

The Bill creates three new rights.

Right to reasonable notice of a shift 

Protected workers will have the right to reasonable notice of how many hours are to be worked for a shift, and from what time on which day. 

This begs the question: what is 'reasonable' notice?  The short answer is that we don't know yet, as this is to be determined by future regulations.  Plainly, the extent of the burden for employers will depend on the length of notice they will need to give.

The Bill also states that there will be a presumption 'unless the contrary is shown' that notice is not reasonable where it is less than a specified amount of time before the shift is due to start.  Again, that amount of time will be set out in regulations.

Right to reasonable notice of cancellation of or change to a shift

Protected workers will have the right to be given reasonable notice of the cancellation of a shift, or any change to the day and/or time at which the shift is to start or end.  It applies to shifts where the worker was entitled to reasonable notice (as above) and notice has been given by the employer. 

Again, the meaning of reasonable notice is unclear and there will be a presumption similar to the one mentioned above in relation to notice that is not reasonable. 

Right to payment for cancelled, moved or curtailed shifts 

Employers will be required to make payment of a 'specified amount' to a protected worker each time that the employer cancels, moves or curtails a qualifying shift at 'short notice' - which will be defined in regulations, but will not mean notice of more than 7 days. 

There may be some exceptions, but these will also be specified in regulations, as will the amount to be paid to the worker, the timing of payment and other related matters. The payment must not exceed what the worker would have earned for the lost shift or part shift. This gives some comfort to employers that such payments will be proportionate and not operate as penalties.

What happens if employers don't comply?

Workers will be able to bring a claim in the Employment Tribunal for breach of these rights, including if they are subjected to a detriment because they refused to work a shift where they had a reasonable belief the correct notice was not given.  The details of compensation will also be set out in regulations.

Comment

Despite the lack of detail in the Bill itself, it is clear that these changes could represent a significant loss of flexibility for employers who rely on deploying their workers in shift patterns, and could have an impact beyond the category of exploited workers at whom they are aimed. 

There will be a lot of 'devil in the detail' of future regulations and employers may want to engage with the Government's current and future consultations to ensure their voices are heard, either individually or through their industry representatives.  

It may be sensible to explore software or IT tools to support the management of shift working in future, particularly scheduling and notice, but it will not be possible to create solutions until the details of the proposals are finalised.