The Government has launched a consultation into proposals made by the Low Pay Commission (LPC) that workers should have a legal right to receive reasonable notice of working hours and that compensation should be awarded in respect of shifts cancelled without reasonable notice.
These proposals stem from the Taylor Review of Modern Working Practice published in July 2017 and the concern that, whilst working flexibly has benefitted both employers and workers, a small number of unscrupulous employers are exploiting workers - so called "one sided flexibility".
The LPC quoted research on widespread concerns about unpredictability of hours, insecurity of income and reluctance to enforce employment rights, particularly amongst low paid workers. Research done in 2018 estimated that as many as 1.7 million workers in the UK were "very anxious that their working hours could change unexpectedly".
So what exactly is happening?
We are already going to see new employment laws which give workers the right to apply for a "more predictable work pattern" and a duty on employers to consider this, with limited grounds to refuse. No draft legislation has yet been published so we don't yet know all the details but there will be new rights to be enforced in Employment Tribunals.
The consultation seeks views on how the current proposals on reasonable notice of working hours and compensation for shifts cancelled without reasonable notice would work. How much notice is "reasonable"? The consultation uses 24 hours, 72 hours and 7 days as examples - However, working practices vary widely - what is reasonable work working in a pub or hotel may be very different to what may be reasonable in the health care sector. Should different sectors and different employers have different periods? Further, given the evidence underpinning this proposed reform focuses solely on the low paid, should these rights be provided only to those on the National Minimum Wage or slightly above? Is there evidence that better paid workers have the bargaining power to enjoy full "two sided flexibility" so should be excluded? Further, what should the penalty be for employers who are found to be in breach of these new requirements?
In terms of cancellation of shifts, the consultation seeks views on what the level of compensation should be - should it simply be the wages the worker would have earned but for the cancellation, or some other figure for example a multiple? What should be the cut off point after which compensation is paid? In this regard research shows that a large proportion of shifts are cancelled with less than 24 hours notice. Further, given that the issue to be tackled is "one sided flexibility" how can we avoid unintended consequences of any new laws affecting the wider workforce?
Whilst the aim of the new proposals is sound, the challenges will be that a "one size fits all" seems inappropriate. It will be challenging to come up with a sensible proposal that stands a chance of fixing the problem whilst not imposing a straightjacket on business.
In Italy and Germany there are already laws and penalties regulating these issues. According to the consultation, doing nothing is not an option and there is a determination to do something. What that something is remains to be seen. However the direction of travel is clear - those employers that rely heavily on casual labour, "bank staff" and shift rotas, should start asking themselves some serious questions.