Section 2 — Shifts: rights to reasonable notice

After section 27BI of the Employment Rights Act 1996 (inserted by section 1) insert— Chapter 3 Shifts: rights to reasonable notice Right to reasonable notice of a shift 27BJ (1) An employer must give to a worker reasonable notice of a shift that the employer requests or requires the worker to work if— (a) the worker is (or is to be) employed by the employer under a zero hours contract, or (b) the worker is (or is to be) employed by the employer under a worker’s contract of a specified description that requires the employer to make some work available to the worker but does not provide on what days and at what times, or in accordance with what pattern of days and times, that work is to be done by the worker, and the shift is to be worked under the contract referred to in paragraph (a) or (b). (2) An employer must give to a worker reasonable notice of a shift that the employer requests or requires the worker to work if— (a) the worker is (or is to be) employed by the employer under a worker’s contract of a specified description that requires the employer to make some work available to the worker, (b) the contract provides on what days and at what times, or in accordance with what pattern of days and times, that work, or some of that work, is to be done by the worker, and (c) the shift is to be worked under that contract but no part of it corresponds to the time of a shift provided for by the contract as described in paragraph (b). (3) An employer must give to an individual reasonable notice of a shift that the employer requests the individual to work if— (a) the individual would, if they worked the shift, be employed by the employer under a worker’s contract, and (b) the worker’s contract would be entered into in accordance with a zero hours arrangement that is in place between the employer and the individual. (4) It is to be presumed, unless the contrary is shown, that notice of a shift is not reasonable notice for the purposes of subsections (1) to (3) if it is given less than a specified amount of time before the shift is due to start. (5) Regulations under subsection (1)(b) or (2)(a)may, in particular, specify a description of worker’s contract by reference to— (a) it being a worker’s contract that entitles a worker to be paid no more than a specified amount; (b) it being a worker’s contract that requires an employer to make work available to a worker for no more than a specified number of hours. (6) Where— (a) the conditions in subsection (2)(a) and (b) are met in relation to a worker and a worker’s contract, (b) the worker is to work (or is working) a shift under that contract all or part of which corresponds to the time of a shift (a “guaranteed shift”) provided for by the contract as described in subsection (2)(b), (c) the employer requests or requires the worker to start earlier, or end later, than is provided for by the contract (as described in subsection (2)(b)) in relation to the guaranteed shift, and (d) the earlier start or later end is to result in an additional number of hours being worked above the number of hours to be worked in the guaranteed shift, the additional hours are to be treated for the purposes of this Chapter as a separate shift (and accordingly as one that meets the condition in subsection (2)(c)). (7) For the purposes of this Chapter— “employer”, in relation to an individual and a shift, includes a person by whom the individual would be (or would have been) employed if the individual worked the shift; “worker”, in relation to a shift, includes an individual who would be (or would have been) a worker if the individual worked the shift. (8) In this section, “notice of a shift” means notice of how many hours are to be worked and when the shift is to start and end. Right to reasonable notice of cancellation of or change to a shift 27BK (1) Subsection (2) applies in relation to an employer and a worker where— (a) the employer has given notice of a shift to the worker, (b) the shift is one that the worker was entitled to reasonable notice of under section 27BJ(1), (2) or (3), and (c) where the shift is one that the employer has requested (rather than required) the worker to work, the worker has agreed to work it. (2) The employer must give reasonable notice to the worker of— (a) the cancellation of the shift by the employer; (b) any change requested or required by the employer consisting of— (i) a change to when the shift is to start or end; (ii) a reduction in the number of hours to be worked during the shift because of a break in the shift; (but this is subject to section 27BM). (3) It is to be presumed, unless the contrary is shown, that— (a) notice of the cancellation of a shift is not reasonable notice for the purposes of subsection (2) if it is given less than a specified amount of time before the shift would have started (if the shift had not been cancelled); (b) notice of a change to when a shift is to start is not reasonable notice for the purposes of subsection (2) if it is given less than a specified amount of time before the earlier of— (i) when the shift would have started (if the shift had not been changed), and (ii) when the shift is due to start (having been changed); (c) notice of any other change to a shift is not reasonable notice for the purposes of subsection (2) if it is given— (i) less than a specified amount of time before the shift is due to start; (ii) on or after the start of the shift. (4) In this section, “notice of a shift” has the same meaning as in section 27BJ. Sections 27BJ and 27BK: supplementary 27BL (1) None of the duties imposed by sections 27BJ and 27BK applies in relation to a shift that would be (or would have been) worked, or is being worked, by a worker as an agency worker (but see Part 2 of Schedule A1 for provision about rights of agency workers to reasonable notice in relation to shifts). (2) Where a worker suggests working a shift and the employer agrees to the suggestion— (a) the duties imposed by section 27BJ(1), (2) and (3) do not apply in relation to the shift as suggested by the worker, but (b) the duty imposed by section 27BK(2) applies (even though the conditions in section 27BK(1) have not been met). (3) Section 27BJ(6) applies for the purposes of subsection (2) of this section as if section 27BJ(6)(c) referred to what the worker suggests rather than what the employer requests or requires. (4) In sections 27BJ and 27BK, references to a request to work a shift made by an employer to a worker include a request (a “multi-worker request”) made by the employer to the worker and one or more others in circumstances where the employer does not need the shift to be worked by all of those to whom the request is made. (5) For the purposes of section 27BK, where an employer has made a multi-worker request to a worker in relation to a shift, references to the cancellation of the shift include the worker not being needed to work the shift because one or more others have agreed to work it. (6) The Secretary of State may by regulations make provision about— (a) the form and manner in which notice under sections 27BJ and 27BK must be given; (b) when notice under those sections is to be treated as having been given. Interaction with Chapter 4 27BM (1) Where an employer— (a) is required to make a payment to a worker under section 27BP in relation to a shift that the employer cancels, moves or curtails at short notice, or (b) would have been required to make such a payment in relation to the shift but for provision made under section 27BR(1)(c), nothing in section 27BK(2) is to be taken to have applied in relation to the cancellation, movement or curtailment of the shift that gave rise to, or would have given rise to, the requirement to make the payment. (2) Terms used in this section have the same meaning as in section 27BP. Complaints to employment tribunals 27BN (1) A worker may present a complaint to an employment tribunal that the worker’s employer has failed to comply with a duty imposed by section 27BJ or 27BK. (2) Where, in determining whether a complaint under this section is well-founded, the tribunal must determine whether reasonable notice has been given, the tribunal must have regard, in particular, to such of the specified matters as are appropriate in the circumstances. (3) An employment tribunal must not consider a complaint under this section unless it is presented before the end of the period of six months beginning with— (a) where the complaint is that the employer failed to comply with a duty imposed by section 27BJ(1), (2) or (3) in relation to a shift, the day on which the shift was due to start; (b) where the complaint is that the employer failed to comply with the duty imposed by section 27BK(2) in relation to the cancellation of a shift, the day on which the shift would have started (if the shift had not been cancelled); (c) where the complaint is that the employer failed to comply with the duty imposed by section 27BK(2) in relation to a change to a shift, the day on which the shift as changed was due to start or, where the shift was changed on or after its start, the day on which the shift started. (4) But, if the employment tribunal is satisfied that it was not reasonably practicable for a complaint to be presented before the end of the relevant period of six months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable. (5) Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (3). Remedies 27BO (1) Where an employment tribunal finds a complaint under section 27BN well-founded, the tribunal— (a) must make a declaration to that effect, and (b) may make an award of compensation to be paid by the employer to the worker. (2) The amount of compensation under subsection (1)(b) in relation to a complaint is to be such amount, not exceeding the specified amount, as the tribunal considers just and equitable in all the circumstances to compensate the worker for any financial loss sustained by the worker which is attributable to the matter complained of. (3) In ascertaining the financial loss sustained, the tribunal must apply the same rule concerning the duty of a person to mitigate their loss as applies to damages recoverable under the common law of England and Wales or (as the case may be) Scotland.