New shift work obligations

New duty to provide reasonable notice of shifts to workers and agency workers

Employers will have a duty to give certain workers and agency workers reasonable notice of their shifts.

This includes situations when employers make a request to work a shift to multiple workers, but doesn't need the shift to be worked by all of them (known as a multi-worker request)

This section discusses the rules applying to workers (including employees) and not qualifying agency workers.

Qualifying contracts

Where an employer requests or requires a worker to do a shift, they will be entitled to reasonable notice of it if they're employed (or will be employed) under a:

1. Zero-hours contract, and the shift is worked under that contract. This is a contract where work is done only if and when an employer makes it available.

2. Type of contract (to be described in new regulations) where the employer must provide them with work and either:

• It doesn't state when the work must be done (by not giving any days and times, or setting a pattern of days and times) and the shift is worked under the contract. This is intended for low-hours contracts but can include contracts based on a low level of guaranteed pay. A low-hours contract is a contract (or more than one contract taken together) with a set minimum number of hours. The maximum number of hours in a low-hours contract, will be consulted on by the government and then set in out in new regulations.
• It states when the work must be done, but the shift is not being worked as part of the working time set out in that contract. This is for shifts that do not form part of the contractually guaranteed working time. Note: If an employer changes the time when the shift is due to start or end and it results in extra hours being worked, it will be regarded as a separate (new) shift, and the employer must give the worker another notice (giving reasonable notice of the new shift).

3. Zero-hours arrangement, and the shift is worked under that arrangement. This is an arrangement where work is done only if and when an employer makes it available. The employer is not required to make any work available and the individual is not required to accept any work that's offered. The arrangement can be contractual or non-contractual.

The contracts to be described in the new regulations may specify the description of worker's contract by reference to a maximum amount of pay or a maximum number of guaranteed hours.

The notice

The employer's notice must state the length of the shift (in hours) and when it will start and end. The notice must be given within a reasonable time before the shift starts.

The government will consult about what 'reasonable time' means and then set out in new regulations containing the form and manner of the notice and when it must be given. If the notice is given late it could result in compensation being paid, unless the employer can prove that it was given within a reasonable time.

Exceptions

Employers will not need to give reasonable notice of shifts where:

• The worker suggests working a shift and the employer agrees.
• 2 workers choose to agree to swap shifts. The government is looking into this issue but currently believes an employer should not be penalised if this happens.

Note: For contracts where the shift does not form part of the workers contractually guaranteed working time, notice must still be given where an employer changes the shift's start or end time and this results in more hours being worked.

Reasonable notice to cancel or change a requested shift

If the employer has given a notice requesting (not requiring) a worker to work a shift and the worker agreed to it, the employer must give them reasonable notice if they want to:

• cancel it;
• make any changes to its day or time; or
• reduce the hours to be worked during it.

A notice must also be given in the situations where a worker:

• Requests to work a shift and their employer agrees but then changes or cancels that shift.
• Who has reasonable notice of a shift requests to work extra hours, and their employer agrees but then changes or cancels that shift.
• Was invited to work a shift following an employer's multi-purpose request, but subsequently did not work it.

New regulations will set out the form and manner of the notice and when it must be given.

Employers will not need to give reasonable notice to cancel or change a shift:

• Where an employer changes the time when the shift is due to start or end and this results in extra hours being worked and the shift does not form part of the worker's contractually guaranteed working time - the employer will need to provide reasonable notice of the changed shift instead.
• Where the employer is required to compensate a worker for a cancelled, moved or changed shift.

Employment Tribunal claims

Workers can start an Employment Tribunal claim if their employer fails to comply with the duty to provide reasonable notice of a shift, or reasonable notice of its cancellation or change.

It must be started within 6 months of:

• The day the shift was due to start (for not giving reasonable notice of a shift or cancellation of a shift).
• The day a changed shift was due to start or, where the shift was changed on or after its start, the day on which the shift started (for not giving reasonable notice of a changed shift).

If a tribunal agrees with a claim that reasonable notice was not given, it must make a declaration stating this and can award compensation for any resulting financial loss suffered by the worker. This will subject to a maximum amount (to be specified in new regulations).

New obligation to pay compensation for cancelled or changed shifts to workers and agency workers

Certain qualifying workers and agency workers will be entitled to compensation if their shift is cancelled, moved or cut short, at short notice.

The right to compensation applies to workers who have a qualifying contract and worked a 'qualifying shift'.

This section discusses the rules applying to workers (including employees) and not qualifying agency workers. For agency workers, their agency will be responsible for paying compensation, regardless of whether it or the employer is at fault.

Qualifying contracts

This is shift worked under a:

1. Zero-hours contract. This is a contract where work is done only if and when an employer makes it available.

2. Zero-hours arrangement. This is an arrangement where work is done only if and when an employer makes it available. The employer is not required to make any work available and the individual is not required to accept any work that's offered. The arrangement can be contractual or non-contractual.

3. Type of contract (to be described in new regulations) where the employer must provide them with work and either:

• It doesn't state when the work must be done (by not giving any days and times or setting a pattern of days and times) and the shift is worked under the contract. This is intended for low-hours contracts. A low-hours contract is a contract (or more than one contract taken together) with a set minimum number of hours. The maximum number of hours in a low-hours contract, will be consulted on by the government and then set in out in new regulations.
• It states when the work must be done but the shift is not being worked as part of the working time set out in that contract. This is for shifts that do not form part of the contractually guaranteed working time. Note: If there's a change when the shift is due to start or end and it results in extra hours (either because the employer requests or requires it to, or the worker requests it), the extra hours will be treated as a separate (new) shift and therefore it'll be a qualifying shift.

The contracts to be described in the new regulations may specify the description of a worker's contract by reference to a maximum amount of pay or a maximum number of guaranteed hours.

Qualifying shifts

Compensation will be payable where any of the following apply:

• The employer has informed the worker that they must work the shift.
• The employer has requested the worker to work the shift and they agreed.
• The worker suggested working the shift and the employer agreed.
• The employer makes a 'multi-worker' request (a request made to multiple workers to work a shift where only some of them are needed to do it) and the worker is not selected to work the shift.

Meaning of moved shifts and short notice

The following rules will apply for shifts that are moved or given at short notice, and will trigger the right to compensation:

Moved shifts:

• A single shift: The original start time of the shift changes by more than a specified amount of time (to be set out in new regulations).
• A shift with 2 or more parts that ends later: The start time of the second (or a subsequent) shift changes by more than a specified amount of time.
• A shift with 2 or more parts that ends later: The time between each part of the shift is more than a specified amount of time.

Short notice:

New regulations will define what is considered to be short notice, but the government has stated it will not be more than 7 days.

The rules will differ depending on what the employer has done:

• Cancelled shifts: Giving notice in less than the specified amount of time before the shift would have started.
• Moved shifts or shifts that have been moved and cut short at the same time: Giving notice on or after the start of the shift, or in less than the specified amount of time - calculated from either the date when the shift would have originally started (if it hadn't been moved or reduced) or the date when the changed shift is due to start (whichever is earlier).
• Shifts that have been cut short and the start time has changed: Giving notice in less than the specified amount of time - calculated from either the date when the shift would have originally started (if it hadn't been changed) or the date when the changed shift is due to start (whichever is earlier).
• Shifts that have been cut short and the start time has not changed: Giving notice on or after the start of the shift or in less than the specified amount of time - calculated from the date it is due to start.

Compensation

Employers will have to pay a specified amount (which may be different depending on the length of notice) given by a specified day (both to be set out in new regulations) to a qualifying worker every time they cancel, move or cut short a shift at short notice.

However, it will not be more than the amount the worker would have been entitled to had they worked the shift (or part of the shift) as originally planned.

Note: There will be situations where the duty to compensate the worker does not apply (to be set out in new regulations) and the employer must then give the worker a notice that:

• States which regulation it's relying on to not make the payment.
• Explains why they are entitled to rely on it, but they won't have to disclose any personal data, commercially sensitive information or information that would be a breach of confidentiality owed by them.

New regulations will set out the form and manner of the notice and when it must be given.

Worker's right not to suffer a detriment

Qualifying workers (including employees) will be entitled to start a claim where they are subjected to a detriment by any act or failure to act by their employer on the ground that they did any of the following:

• Declined to work a shift (or part of a shift) because they reasonably believed that their employer failed to comply with a duty to give reasonable notice of a shift or notice of a cancelled or changed shift. This will include an employer ceasing to offer work because the worker refused to work a shift.
• Started a claim for breaching the rules regarding the right to reasonable notice of shifts, or payment for cancelled, moved or curtailed shifts.
• Alleged (in good faith) the existence of any circumstance that would establish a ground for starting such a claim (whether or not they referred to the possibility of actually making a claim or if the claim is based on good evidence or reasons).

Employment Tribunal claims

Qualifying workers can start a claim if their employer:

• Fails to pay all or any part of a payment for a cancelled, moved or curtailed shift.
• Unreasonably failed to give the worker a notice explaining why it doesn't have to make a payment to the worker.
• Gave the worker a notice explaining why it doesn't have to make a payment that doesn't state which section of the regulation it's relying on, or doesn't contain an explanation (or contains one that's inadequate or untrue) about why they're entitled to rely on it.

The claims must be started within 6 months of:

• The day after the day by which the payment should have been made (for failing to pay all or any part of a due payment).
• The day after the day by which the notice should have been given (for unreasonably not giving notice explaining why payment was not given).
• The day after the day on which the notice was given (for giving an inadequate, untrue or incomplete notice about why payment was not given).

If a tribunal agrees with a claim, it must make a declaration stating that fact.

It must also award compensation if it believes the employer failed to make payment for a shift that was cancelled, moved or cut short.

Where exceptions to making a payment apply and the notice was inadequate, the tribunal has a discretion whether to order compensation and it will depend on how serious the breach was.