Section 3 — Right to payment for cancelled, moved and curtailed shifts

After section 27BO of the Employment Rights Act 1996 (inserted by section 2) insert— Chapter 4 Right to payment for cancelled, moved and curtailed shifts Right to payment for a cancelled, moved or curtailed shift 27BP (1) An employer must make a payment of a specified amount to a worker each time that the employer cancels, moves or curtails at short notice a qualifying shift— (a) that the employer has informed the worker they are required to work, (b) that the employer has requested the worker to work and the worker has agreed to work, or (c) that the worker has suggested working and the employer has agreed to the worker working, (but see section 27BR for exceptions to this duty). (2) A shift is a “qualifying shift”, in relation to a worker and an employer, if it would be (or would have been) worked, or is being worked, by the worker for the employer under— (a) a zero hours contract, (b) a worker’s contract entered into in accordance with a zero hours arrangement, or (c) 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. (3) A shift is also a “qualifying shift”, in relation to a worker and an employer, if— (a) it would be (or would have been) worked, or is being worked, by the worker for 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) no part of the shift corresponds to the time of a shift provided for by the contract as described in paragraph (b). (4) Where— (a) the conditions in subsection (3)(a) and (b) are met in relation to a shift, (b) all or part of the shift corresponds to the time of a shift (a “guaranteed shift”) provided for by the contract as described in subsection (3)(b), (c) the employer requests or requires, or the worker suggests, that the worker starts earlier, or ends later, than is provided for by the contract (as described in subsection (3)(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 a “qualifying shift”). (5) A payment that an employer is required to make under subsection (1) must be made by no later than the specified day. (6) For the purposes of this Chapter, “short notice” means— (a) in relation to the cancellation of a shift, notice given less than a specified amount of time before the shift would have started (if the shift had not been cancelled); (b) in relation to the movement of a shift, or the movement and curtailment (at the same time) of a shift, notice given— (i) less than a specified amount of time before the earlier of when the shift would have started (if the shift had not been moved, or moved and curtailed) and when the shift is due to start (having been moved, or moved and curtailed); (ii) on or after the start of the shift; (c) in relation to the curtailment of a shift where there is a change to when the shift is to start (but there is no movement of the shift), notice given less than a specified amount of time before the earlier of— (i) when the shift would have started (if there had not been the change), and (ii) when the shift is due to start (the change having been made); (d) in relation to the curtailment of a shift where there is no change to when the shift is to start, notice 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. (7) The Secretary of State may by regulations make provision about when notice of the cancellation, movement or curtailment of a shift is to be treated as having been given by an employer to a worker. (8) 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. (9) For the purposes of this Chapter, references to the movement of a shift (however expressed)— (a) are to any change to the time at which the shift is to start that is a change of more than a specified amount of time; (b) include— (i) where a shift is in two or more parts, a change of more than a specified amount of time to the time at which the second (or a subsequent) part is to start, and (ii) a division of a shift into two or more parts where the time between the parts is more than a specified amount of time, but only if the change or division (as the case may be) results in the shift ending later. (10) In this Chapter, 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. (11) For the purposes of this Chapter, where an employer has made a multi-worker request to a worker in relation to a shift, references to the cancellation of the shift (however expressed) include the worker not being needed to work the shift because one or more others have agreed to work it. Regulations under section 27BP: supplementary 27BQ (1) Regulations under section 27BP(1) may not specify an amount to be paid to a worker in relation to the cancellation, movement or curtailment of a shift that exceeds— (a) where the shift is cancelled, the amount of remuneration to which the worker would have been entitled had they worked the hours that will not be worked because of the cancellation; (b) where the shift is moved, or moved and curtailed (at the same time), and no part of the shift as moved, or as moved and curtailed, corresponds to the time of the shift (“the original shift”) before it was moved, or moved and curtailed, the amount of remuneration to which the worker would have been entitled had they worked the original shift; (c) where the shift is moved, or moved and curtailed (at the same time), and part of the shift as moved, or as moved and curtailed, corresponds to the time of the original shift (but part does not), the amount of remuneration to which the worker would have been entitled had they worked the part of the original shift that does not correspond to the shift as moved, or as moved and curtailed; (d) where the shift is— (i) curtailed but not moved, or (ii) moved and curtailed (at the same time) and the shift as moved and curtailed is to start and end within the time of the original shift, the amount of remuneration to which the worker would have been entitled had they worked the hours that will not be worked because of the curtailment, or the movement and curtailment. (2) Regulations under section 27BP(1) may, in particular, include provision specifying different amounts depending on the amount of notice that was given of the cancellation, movement or curtailment. (3) Regulations under section 27BP(2)(c) or (3)(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. (4) Regulations under section 27BP(6) may not specify an amount of time that exceeds 7 days. Exceptions to duty to make payment for a cancelled, moved or curtailed shift 27BR (1) The requirement to make a payment under section 27BP(1) does not apply— (a) 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 3 of Schedule A1 for provision about rights of agency workers to payment for cancelled, moved and curtailed shifts); (b) in relation to the cancellation, movement or curtailment of a shift that an employer has requested a worker to work, unless the worker reasonably believed, whether on agreeing to work the shift or at some later time before the cancellation, movement or curtailment, that they would be needed to work the shift; (c) in other specified circumstances. (2) Where, by virtue of regulations made under subsection (1)(c), an employer is not required to make a payment to a worker in relation to a shift under section 27BP(1), the employer must give a notice to the worker that— (a) states which provision of the regulations has produced the effect that the employer is not required to make the payment, and (b) explains why the employer was entitled to rely on that provision. (3) But subsection (2)(b) does not require an employer to disclose— (a) any information the disclosure of which by the employer would contravene the data protection legislation (but in determining whether a disclosure would do so, the duty imposed by that subsection is to be taken into account); (b) any information that is commercially sensitive; (c) any information the disclosure of which by the employer would constitute a breach of a duty of confidentiality owed by the employer to any other person. (4) In subsection (3)(a) “the data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3(9) of that Act). (5) The Secretary of State may by regulations make provision about— (a) the form and manner in which a notice under this section must be given; (b) the day on or before which it must be given; (c) when a notice under this section is to be treated as having been given. (6) The duty in subsection (2) is to be taken not to have applied if— (a) the employer pays to the worker an amount in relation to a number of hours that is at least equal to the amount of the payment that the employer would have been required to make to the worker under section 27BP(1) in relation to the same number of hours but for regulations made under subsection (1)(c), and (b) the payment is made on or before the day on which the payment under section 27BP(1) would have had to be made if the employer had been required to make it. (7) Subsection (4) of section 27BS applies for the purposes of subsection (6) of this section as it applies for the purposes of subsections (2) and (3) of that section. Contractual remuneration 27BS (1) The right of a worker to receive a payment from an employer under section 27BP(1) does not affect any right of the worker in relation to remuneration under a worker’s contract entered into between the worker and the employer (“contractual remuneration”). (2) Any contractual remuneration paid to a worker by an employer in relation to a number of hours goes towards discharging any liability of the employer to make a payment to the worker under section 27BP(1) in relation to the same hours. (3) Any payment made by an employer to a worker under section 27BP(1) in relation to a number of hours goes towards discharging any liability of the employer to pay contractual remuneration to the worker in relation to the same hours. (4) For the purposes of subsections (2) and (3), the hours to which a payment under section 27BP(1) relates are— (a) where a shift has been cancelled, the hours that would have been worked if the shift had not been cancelled; (b) where a shift has been moved, or moved and curtailed (at the same time), and no part of the shift as moved, or as moved and curtailed, corresponds to the time of the shift (“the original shift”) before it was moved, or moved and curtailed, the hours that would have been worked during the original shift; (c) where a shift has been moved, or moved and curtailed (at the same time), and part of the shift as moved, or as moved and curtailed, corresponds to the time of the original shift (but part does not), the hours that would have been worked during the part of the original shift that does not correspond to the shift as moved, or as moved and curtailed; (d) where a shift has been— (i) curtailed but not moved, or (ii) moved and curtailed (at the same time) and the shift as moved and curtailed is to start and end within the time of the original shift, the hours that would have been worked if the shift had not been curtailed, or moved and curtailed. Complaints to employment tribunal 27BT (1) A worker may present a complaint to an employment tribunal that the worker’s employer— (a) has failed to make the whole or any part of a payment that the employer is liable to make to the worker under section 27BP(1); (b) has unreasonably failed to give to the worker a notice under section 27BR(2); (c) has given to the worker a notice in purported compliance with section 27BR(2) that— (i) does not refer to any provision of the regulations; (ii) does not contain an explanation or contains an explanation that is inadequate or untrue. (2) An employment tribunal must not consider a complaint under subsection (1)(a) relating to a payment unless it is presented before the end of the period of six months beginning with the day after the day on or before which the payment should have been made (see section 27BP(5)). (3) An employment tribunal must not consider a complaint under subsection (1)(b) relating to a notice unless it is presented before the end of the period of six months beginning with the day after the day on or before which the notice should have been given (see section 27BR(5)(b)). (4) An employment tribunal must not consider a complaint under subsection (1)(c) relating to a notice unless it is presented before the end of the period of six months beginning with the day after the day on which the notice is given. (5) But, if the employment tribunal is satisfied that it was not reasonably practicable for a complaint under this section 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. (6) Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsections (2) to (4). Remedies 27BU (1) Where an employment tribunal finds a complaint under section 27BT(1)(a) well-founded, the tribunal must— (a) make a declaration to that effect, and (b) order the employer to pay to the worker the amount of the payment under section 27BP(1) which it finds is due to the worker. (2) Where an employment tribunal finds a complaint under section 27BT(1)(b) or (c) well-founded, the tribunal— (a) must make a declaration to that effect, and (b) may order the employer to make a payment to the worker of such amount, not exceeding the specified amount, as the tribunal considers just and equitable in all the circumstances. (3) But an employment tribunal may not make an order under subsection (2)(b) relating to a notice given in purported compliance with section 27BR(2) if the tribunal makes an order under subsection (1)(b) relating to the same payment to which the notice related. (4) In determining— (a) whether to make an order under subsection (2)(b), and (b) if so, how much to order the employer to pay, an employment tribunal must have regard, in particular, to the seriousness of the matter complained of.