Changes to employment rights – what every employer should know

The Employment Rights Bill was designed to usher in a new working age, by promoting fairer employment practices that would, in theory, level the playing field for more employees. In reality, several of the changes are not as extreme as had been anticipated, and the big changes are being softened by a two-year ‘consultation period’.

Photograph: iStock/gpointstudio

The social enterprise Timewise advocates for flexible and secure work in roles with shift-based, frontline workers. It also runs a consultancy to support and advise employers on all aspects pertaining to the future of work. It has written a three-part guide called Changes in Work, focusing on three elements of the bill: the right to switch off, the right to work flexibly from day one in a new job, and key changes to zero-hour contracts.

Timewise has been holding a series of sector-focused sessions for industry leaders, CHROs (chief human resources officers) and unions, in construction, transport, logistics, manufacturing and retail, to discuss the coming changes and how specific sectors can best prepare. As with any change in employment law – those who get ahead are set to win the war on talent attraction.

The right to switch off

With the publication of the Employment Rights Bill, it was anticipated that the right to disconnect would be one of the raft of new rights for employees. However, it seems that this particular element of the legislation will instead be progressed through a Code of Practice. Although it will not become a statutory right, it remains a key pillar of Labour’s plan to Make Work Pay.

The Government’s intention behind this new Code of Practice is to improve productivity and morale and promote work-life balance.

Certainly, advancements in technology contribute to an ‘always on’ culture – where employees feel they are expected to be available and contactable outside of their working hours. A recent study by IOSH found there is an ‘epidemic’ of long working hours within the UK, and additionally found that 52 per cent of respondents regularly check work-related messages and emails outside of working hours, and 39 per cent check and respond to work-related messages while on annual leave.

This blurring of boundaries between work and outside-work life is what the Government is seeking to address, and we at Timewise welcome the Code of Practice to help tackle what is a current and pressing wellbeing issue. While some are concerned about a negative impact on productivity, we ascribe to the belief that well rested, healthy employees, who have protected time away from work, are likely to be more engaged and productive when they are working.

What can we learn from elsewhere? It appears the Government is taking a similar approach to Ireland, which has an established a code of practice. This requires employers to come up with practical arrangements for guaranteeing periods when employees aren’t contacted and sets out obligations for time recording to demonstrate this.

Others, including Australia, have also implemented their own formal right to disconnect from work, giving workers the right to refuse to monitor, read or respond to work-related communications without fear of dismissal or reprisals.

The language in Labour’s new deal suggests they recognise that a ‘one-size-fits-all’ approach won’t work on this – and that each workplace will be required to work out their own response to the new right, and how it can be implemented. Note that it is unclear how employers are to be held accountable for upholding their responsibilities. We’d like to see the Code of Practice setting out clear requirements for monitoring and reporting to ensure it has an impact.

The right to switch off won’t automatically kick in at 5pm Monday to Friday in all cases – it’s about identifying what is reasonable and practical and ensuring the organisation’s culture and systems are set up to support this. The introduction of a Code of Practice provides an opportunity for managers and employees to revisit working patterns and arrangements, and ensure that they are working for individuals and enabling them to deliver productively in their roles.

Here are four things you can do to help your employees feel they don’t need to be ‘always on’:

1. Engage your leaders as role models for an organisational commitment
2. Explore what’s driving out-of-hours contacts
3. Explore the impact it is having on colleagues’ health and wellbeing. What data do you have on absence or engagement for the teams who are ‘always on’? Does this help you build a case for change?
4. Explain how to switch off when you work flexibly – and how to enable your colleagues to do the same.

Flexible working as a default Day One right

The Employment Rights Bill included the commitment to make flexible working a default right from Day One in a new job. If delivered correctly, this change could enable thousands more people to access and stay in work. It will also benefit employers in terms of improving wellbeing and morale, and reducing sickness and turnover.

In terms of how it will be delivered, the Government has essentially tightened up previous policy, putting more onus on the employer to accept any ‘reasonable’ request. Supporting guidance is expected to make it clear what the consideration process needs to be and to help employers understand how to apply the ‘reasonableness’ assessment.

The key to making it work is to ensure it supports employers in delivering their business, as well as supporting individuals. It is also important to reference all types of flexible working to ensure that the right flexibility can be found which suits the role – part-time, flexi-hours, flexitime, job sharing and so on. At Timewise we expect to be busy, helping employers to design flexible work and identify ‘which flex’ will work in their services and teams, as well as supporting teams with multiple people working flexibly.

Amy Butterworth is director of Timewise. Photograph: Timewise

Indeed, across the course of 18 years we have helped hundreds of employers to find what flexible working works for them. And as we’ve proved in our innovation work, there are ways to improve the options and choice someone has, even in shift-based and site-based roles. 

Here are five ways to get ready for ‘flex by default’:

1. Get your leaders on side. Highlight the business benefits of supporting flexible working – in terms of retention, wellbeing, productivity and inclusion. 
2. Identify your flex framework, for every role 
3. Identify any systems and policies which work against being a flexible organisation For example, counting heads instead of FTE (full-time employees), not having the tech to enable remote working, or systems which default to everyone working 9 to 5
4. Support managers to start from a ‘Yes, how?’ response, rather than fear flex working requests 
5. Make it a regular conversation. Ask team members regularly about their working patterns. Get teams talking about how they’re working together.

Zero-hours contracts

The focus on zero-hours contracts and banning of exploitative work arrangements, in favour of more balanced flexibility – that works both for employers and staff – has been a consistent element of the Government’s plans since before the election.

The use of zero-hours contracts in the UK has been growing and we now have over one million people on this type of employment contract as their main job. Although this only affects a small proportion of workers overall, some sectors are heavily reliant upon these contractual arrangements – including food and hospitality, health and social care and transport. Certain groups are also disproportionately affected – figures from the Work Foundation suggest that women, young workers (including those aged 16–24 who are not students), and black workers are all more likely than others to be employed on this basis.

Photograph: iStock/martin-dm

A zero-hours contract is one where the employer does not guarantee the worker any hours of work and instead offers work as and when it is available. They have been heralded in the past as the solution to flexible work, but this comes at a price – with only a tiny minority of people employed on these contracts having access to regular pay and rights. Three in four workers on zero-hour contracts are in severely insecure work.

The Government has stated: “We’re introducing a right to guaranteed hours reflecting the hours qualifying workers have worked during a reference period, anticipated to be 12 weeks. And we’re also enshrining into law the right to reasonable notice of shifts and a right to payment for shifts cancelled or curtailed at short notice.”

Zero-hours contracts won’t be banned completely, but the rules around them will change. Those on both zero- and low-hours contracts will gain the right to have guaranteed hours if they work regular hours over a reference period, likely to be 12 weeks.

Workers will be able to bring tribunal claims and be awarded compensation. However, they will also be able to remain on zero-hours contracts, if they prefer.

Workers will also be entitled to reasonable notice of shifts (including details of how many hours are to be worked and when), changes to shifts and cancellation of shifts, and for payment if shifts are cancelled, moved or shortened.

What should you do to prepare?

1. Check your mindset

• See this as an opportunity to rethink what good looks like for your staff.
• Challenge the assumption that zero-hours contracts are the only way to get you the flexibility that you need to run your business – more secure employment with some guaranteed hours and/or a predictable pattern is likely to enable you to fill vacancies more easily and retain and develop your staff.
• Get creative – think about other innovative ways of organising work and schedules such as annualised hours, fixed-term and temporary contracts for peak times, overtime arrangements, opt-in solutions for rostering and shift swaps. These can bring you the flexibility that you need within your workforce, and can help reduce your reliance on minimum-hours arrangements.

2. Check your practice

The issue with zero-hours contracts for many people is that they can provide a lot of flexibility for the employer and no stability or security for the individual, as they do not guarantee hours or income and make it hard to predict earnings week to week.

Ask yourself:

• Do you have zero-hours employees who regularly or semi-regularly work a similar number of hours or pattern each week? This could be formulated into a regular contract which commits to guaranteed hours and gives greater security to your team members.
• Do you give reasonable notice of adjustments to shifts and cancelled shifts? Best practice is up to four weeks ahead. Cancelling shifts at short notice without pay is the type of exploitative practice which the bill aims to clamp down on.
• Do all your workers receive statutory pay for sickness, holiday, maternity/paternity/adoption leave, and is this calculated fairly where a reference period is used for eligibility? We know that at present some employers try to avoid their obligations by using zero-hours contracts and cutting hours to get around eligibility for maternity or other pay.
• Zero-hours arrangements can be valuable for some employees wanting to work additional hours or second jobs, alongside a secure, regular contract of work. For example, health and social care staff who choose to pick up agency shifts alongside substantive roles may find that zero-hours arrangements give them the flexibility to pick and choose whether they work additional hours or not. Ask yourself whether there are other, better overtime arrangements which you could consider. These may have the added bonus of providing you with more consistent workers, which is often helpful for training purposes and ensuring high standards of service user/patient care.
• Talk to your team members about their needs and preferences. Often people accept zero-hours contracts because they can’t see any other way to get the flexibility that they need in their working week. Don’t assume that it is working for them.

In conclusion

The Government has opened a consultation on whether and how these rights could be extended to agency workers, which you can participate in here.

Further details will be needed, including how long the reference period is, how it will be calculated and how terms such as ‘regular hours’ and ‘low hours’ are defined.

Detailed, practical guidance will be needed to implement the planned changes, including a clear explanation for employers of what is meant by exploitative, and whether all zero-hours contracts are in scope. If zero-hours contracts are to be permitted in certain cases, the Government will need to set out arrangements for monitoring this and ensuring workers’ rights are protected.

Whatever emerges, there is a clear ambition and opportunity to improve the predictability and security of working hours and income for workers, which is welcome. We look forward to contributing to the detail of the new regulations and supporting more employers to create good quality jobs.

Amy Butterworth is director of consultancy Timewise.

For more advice and information see:

timewise.co.uk

timewise.co.uk/insight_and_research

@Timewise_UK

linkedin.com/company/timewise-flexible-working-consultants/

E: [email protected]

T: +44 (0)20 7633 4444

For information on the Employment Rights Bill and the Make Work Pay plan see:

bills.parliament.uk/bills/3737

commonslibrary.parliament.uk/research-briefings/cbp-10109/

gov.uk/government/publications/employment-rights-bill-factsheets

gov.uk/government/collections/make-work-pay