The Proposal

The consultation follows the Employment Rights Bill, published earlier this month. This Bill included new rights for zero hours and low hours workers

• to be offered guaranteed hours based upon hours regularly worked in a set period, expected to be 12 weeks
• to receive minimum notice for work requirements, and
• to be compensated for short notice cancellation, shift curtailment or change.

However,  agency workers were excluded, recognising that different considerations apply, and a separate consultation would be needed to consider who in the supply chain should be responsible for providing those rights. The government is seeking views specifically on:

Guaranteed hours

The consultation does not consider whether guaranteed hours should be offered in principle, as this concept appears set in stone. This part instead asked whether it should be the agency or the hirer that is obliged to offer the guaranteed hours contract, reflecting that an agency worker may work on multiple assignments for multiple hirers, or whether it should be the hirer that offers the guaranteed hours on the basis that the hirer has control over work levels.

There are pros and cons to each approach. Agencies can only offer the work that is available with hirers, so being obliged to offer guaranteed hours after 12 weeks may not be practically manageable unless hirers make such work available. Against this however, if the hirer is responsible for offering guaranteed hours on the basis that the hirer has control over the work, the consultation envisages a transfer of the agency worker onto a direct contract with the hirer. Could this be employment via the back door, so converting temp or contract workers into being the hirer’s employees?  The consultation asks whether transfer fees should be charged in those circumstances or not, opening up the risk of an agency losing both its margin and any transfer fee.

Lots to discuss, including in our view whether the guaranteed hours proposal as set out can work in practice at all in agency context.

ARC is interested to hear views on your preferred approach, any issues or concerns that you foresee with either approach and whether there could be better alternatives.

Reasonable notice

The proposal is that a zero-hour worker should be entitled to reasonable notice of a work requirement and have entitlement to claim to an Employment Tribunal if reasonable notice is not given. At this stage the consultation is just seeking views on who should be liable if notice given is unreasonable, should this be the agency or hirer? This may of course depend upon who is responsible.

What period is deemed to be reasonable, as well as the factors to be taken into account in assessing reasonableness are to be addressed in further consultations.

The concept appears to be flawed in a number of ways, but as with other parts of this consultation, the principle is not considered but the question is simply who should be liable.

Curtailment, cancellation or movement of agreed shifts

The proposal is that if a shift is cancelled at short notice, curtailed or moved, the worker should be entitled to be compensated.   There is an intention for further consultation regarding the level of compensation and what constitutes short notice. However, the suggestion is that in an agency worker supply situation, the obligation to compensate would fall on the agency, as the agency is the party paying the worker, but that cost should be recouped from the hirer.  The consultation is asking specific questions around whether this is the correct approach and whether the recoupment requires statutory measures, or whether it could better be addressed in the agency to hirer contract, or a hybrid of statute and contract.

This is again an area that needs to be carefully considered to ensure that any agency is not left liable for the costs if a hirer cancels or curtails a shift.

Don’t forget to book your place at one of our virtual sessions, or email us at info@arc-org.net.