Employment Rights Bill unpacked: shifting the power for shift workers

A focus of Labour’s manifesto before the election was about ending “one-sided flexibility”. They pledged a commitment to “securonomics” – aiming to give people security in their day-to-day working lives. A large part of their plans to achieve this was by banning exploitative zero hours contracts.

Although Labour have rowed back from an outright ban, the Bill will give workers the rights to be offered guaranteed hours. We have explored this in detail here. Alongside these changes, the Bill also introduces new rights to notice of shifts and payment when a shift is cancelled or changed at short notice. This will further bolster the protection of low paid workers with unpredictable working patterns.

The government estimate these changes could benefit up to 2.4 million workers; we consider how big a shift this will be for businesses.

The new rights

The Bill creates three new rights:

• Reasonable notice of shifts

  The Bill introduces a right to reasonable notice of a shift that the employer requests or requires a worker to work. This includes if a shift deviates from a shift pattern referred to in a worker’s contract. Notice must include the day and time of the shift, as well as how many hours are to be worked.

• Reasonable notice of shift changes or cancellation

  There is also a right to reasonable notice of any cancelled shift or any change to the day or time a shift is supposed to start and end.

• Payments for cancelled, moved or curtailed shifts

  There is a duty on employers to make a payment to workers each time a shift is cancelled, moved or curtailed at “short notice”. A payment does not need to be made in “specified circumstances” but it’s not yet clear what these circumstances will be. If a payment isn’t necessary, the employer must instead give the worker a notice explaining why they believe a payment is not needed.

We discuss what will amount to “reasonable” notice and “short notice”, as well as the form a notice must take in further detail below. The details will all be fleshed out in regulations.

Who do these rights apply to?

Similar to the right to be offered guaranteed hours, these rights will be provided to zero hours workers and those on zero-hour arrangements, as well as workers on low-hours contracts. But these rights will also apply to a broader category of workers, including workers where the employer is required to make some work available but does not specify the days or times that need to be worked. This will likely include any shift workers with variable working patterns.

The Bill includes powers for the regulations to specify that the provisions only apply to contracts below a maximum salary or maximum hours number of guaranteed hours. It is unclear what these amounts could be, but it shows that the driver is to protect low paid workers with unpredictable working patterns.

What about agency workers?

At the moment, these provisions don’t apply to agency workers, but the Bill includes the power to extend its application to that group. This seems to be a high priority for the government as a consultation has already been launched on how these measures would apply to agency workers.

What is a request to work?

The Bill is clear that a request to work can include a request of a specific individual, but also a general request to staff where they will not all need to work. So, for example, if a worker calls in sick the day before their scheduled shift, and the employer sends a request to all their workers who are in the same role, this will still amount to a request.

If it is the worker who suggests working an additional, or longer, shift, the employer does not need to give notice. Of course, if the agreed shift is later changed or cancelled, notice will still be required.

Could we require an employee to take holiday instead of cancelling a shift?

The Bill is silent on this option but employers can still require holiday to be taken on certain dates under the existing law. This also requires notice to be given - at least twice as many days as the number of days holiday e.g. two days’ notice for one day of holiday. Whether this will be a workable option for employers depends on how this compares to “reasonable” notice and “short notice” – see more on this below.

Is notice still needed if a shift is cancelled at short notice and payment has been made?

If an employer is required to make a payment (or is covered by an exemption), then there is no need to give reasonable notice in the required form.

What happens if we don’t comply?

Various claims can be brought depending on which right is breached:

• Notice to a shift or shift change

Workers can bring an employment tribunal claim if reasonable notice of a shift or shift change/cancellation has not been given. Such claims must be brough within 3 months of when a shift was supposed to start, unless it was not reasonably practicable to do so. It is worth noting that the government plans to amend the Bill to extend time limits for bringing any Tribunal claim so there could be a longer time limit in the future.

If successful, the Tribunal must make a declaration and may also award compensation. Compensation will be what is considered just and equitable based on financial loss (and the usual rules of mitigation will apply). Compensation will be subject to a maximum amount to be set in regulations.

• Payment for cancelled, moved or curtailed shifts
  

Claims can also be brought if:

• payment isn’t made in full;
• the worker hasn’t been given the correct notice explaining why payment hasn’t been made; or
• the notice is inadequate or untrue.

Such claims must be brought within 3 months of when a shift was supposed to start or when payment was due, unless it is not reasonably practicable to do so.

If successful, the Tribunal must order the employer to pay any payment due or may award compensation if notice wasn’t given (or correctly given). Compensation will for a specified amount to be set in regulations.

• Detriment

Workers also cannot be subject to a detriment because they refused to work a shift where the worker had a reasonable belief that the correct notice was not given. For example, an employer couldn’t stop offering hours or reduce hours because of their refusal. Workers also can’t be subject to a detriment because they bought a claim.

Unlike the right to be offered guaranteed hours there is no right to automatic unfair dismissal rights for dismissals related to a worker’s refusal to work a shift because reasonable notice was not given. However, any dismissal will undoubtedly by a detriment entitling a worker to make a claim.

Main areas of uncertainty

There will need to be consultation on how much notice must be given, what payment must be made, how any compensation will be calculated and any exceptions.

• What is reasonable notice? What is “reasonable” notice will depend on the circumstances. The regulations will set out a specific minimum time before the shift is due to start – if less notice is given it will be presumed to be unreasonable unless an employer can show otherwise. When determining what is reasonable, a tribunal must have regard to a number of matters to be set out in regulations. It is not clear what matters will be considered relevant.
• How must notice be given? Regulations will set out the form and manner in which notice must be given, as well as the day it must be given. Employers will be hoping for as little notice as possible to allow them to respond agilely to changing demand.
• What is “short notice” triggering payment? The Bill says this can’t exceed seven days, so short notice will be a week or less. Again, employers will want this to be as low as possible. When there is a downturn in business resulting in businesses being overstaffed, employers will not want to be doubly hit by having less business through the doors and needing to pay (or partially pay) an employee for an unworked shift.
• What cancellation/curtailment payment must be made? Details will be clarified in regulations, but compensation will be proportionate to the cancellation or curtailment. This suggests different amounts will be payable depending on how much notice is given. 
  The maximum payment will not exceed the salary the worker would have earned if they had worked the cancelled or curtailed shift. Any payment due under the worker’s contract can be counted towards the statutory payment needed (and vice versa).
• How long does an employer have to make the payment? It is unclear how long an employer will have to make the payment. This will be specified in regulations.
• In what circumstances does a payment not need to be made? For example, will a payment still be required if a shift is cancelled for reasons outside of an employer’s control? This could be for a range of reasons e.g. an employer may consider it necessary to close a workplace because of health and safety concerns, such as ongoing riots or damage to the building. There are also many other commercial reasons why employers may need to cancel a shift on relatively little notice. For example, hospitality and leisure industries often see fluctuating demand depending on the weather (and we all know how unpredictable the British weather can be!).
• Any other exceptions? Regulations could set out further exceptions. This could include an exception for those who earn a certain salary, as well as wider exceptions.

Steps to prepare

This will be a fundamental change in practice. Whilst some contracts of employment may provide minimum notice provisions for shifts, these tend to be discretionary. There are currently no statutory rights to notice of shifts or work schedules. It is unusual in practice to see any form of payment if a shift is cancelled or moved. 

The government have said that they will consult on these issues ahead of making regulations. We expect consultation to take place next year, with any changes coming into force in 2026. 

There is no need for businesses to take any immediate action. But whilst we await further details, employers can begin preparing by:

• Check contracts to determine if there are any circumstances payment must be made if a shift is changed or cancelled at the last minute.
• Consider shift scheduling. Where shifts fluctuate throughout the year, consider auditing shift patterns and how much notice is currently given to workers.
• Explore capabilities of any existing software or tools to support with scheduling and communications.

For more information about what’s in the Employment Rights Bill (and what’s not), see our What’s in the Employment Rights Bill dashboard and, for more information on the Labour government’s reform agenda, visit our Labour Policy Impact Hub