Employers of seasonal workers need to be well versed in the proposals of the Employment Rights Bill, which if misunderstood or ignored could lead to tribunal proceedings and reputational damage
The onset of the festive period has seen the usual influx of new faces working in the hospitality and retail sectors to cover seasonal spikes.
Within a few weeks, however, many of those workers will be back in the hunt for new opportunities. The issue of zero and low hours workers has received a lot of recent attention following the introduction of the Employment Rights Bill, which will improve zero hours workers’ rights in terms of certainty of hours and pay.
Under the Bill as it currently stands (amendments are taking place and a consultation has recently ended), employers must offer zero hours workers a guaranteed hours contract at the end of every “reference period” (to be defined by the regulations but most likely after 12 weeks). What are the key changes the Bill will usher in?
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Offer of guaranteed hours
The guaranteed hours contract must set out either the days of the week and hours and/or the working pattern that will be offered (which should in turn reflect the reference period hours in the relevant period). A worker may complain to the tribunal if an offer is not made by the end of the offer period (the remedies for which will be compensation only).
Shift notice
A new duty on employers to give workers reasonable notice of shifts (including the time and duration of the shift) and reasonable notice of cancellation or changes to a shift. Reasonable notice will be presumed to be at least equivalent to the duration of the shift (for example, eight hours notice for an eight-hour shift). Different provisions will also apply to agency workers.
Cancelled, curtailed or moved shift
Workers will be entitled to compensation in the event their shift is cancelled, moved or curtailed and the worker will have the right to complain to the employment tribunal. The amount the employer is required to pay every time it cancels, moves or curtails a “qualifying shift” will be set out in the regulations.
Ministers’ intention behind the changes is to “end one-sided flexibility” and to ensure that “all jobs provide a baseline level of security and predictability”.
Currently, employers have a great deal of flexibility in setting seasonal workers pay and shift patterns and can often end these arrangements with little to no process or notice. If these proposals are approved (and we are told that this will be no earlier than autumn 2026), we envisage a scenario whereby employers may need to offer contracts for more guaranteed hours than they actually need and have reduced flexibility to reduce or cut short shifts where there is unexpected fluctuations in customer demand.
How can businesses prepare?
As well as closely monitoring future government updates, businesses should also consider:
- Auditing their current usage of zero or low hours contracts to determine how reliant the business is on this additional support
- Reviewing shift patterns to determine when seasonal fluctuations occur and how long workers are needed to cover these fluctuations (if longer than 12 weeks, there may be an obligation to offer guaranteed hours)
- Monitoring hours and shifts worked and consider whether current systems are adequate for recording this data
- Communicating and building better systems for notifying workers of shift patterns and changes to avoid falling foul of future financial penalties for late changes to shifts.
Duty to prevent sexual harassment in the workplace
The Worker Protection (Amendment of Equality Act 2010) Act 2023 came into force in October 2024. Although the concept of protecting workers from sexual harassment is not new, the Act places anew positive legal obligation on businesses to take reasonable steps to prevent sexual harassment of workers in the course of employment.
Businesses in the hospitality and retail sectors should familiarise themselves with the new obligations, particularly the Checklist and Action Plan prepared by the Equality and Human Rights Commission (EHRC) published on 12 November 2024.
The EHRC makes it clear that training and evaluation of policies should be offered regularly and complaints should be dealt with effectively, efficiently and sensitively. Additionally, the EHRC recommends:
Before a shift
Managers/HR reiterate the organisation’s zero-tolerance approach to sexual harassment regularly during manager meetings or briefings and give staff training and advice for safe intervention methods if they witness an incident of sexual harassment.
At the start of a shift
Remind staff about sexual harassment policies and what constitutes sexual harassment. Use a briefing meeting to ask staff responsible for handling complaints to make themselves known to staff and the relevant complaints channels.
At the end of a shift
Reiterate the zero-tolerance approach to sexual harassment before staff go home or finish their shift as well as remind them of the confidential reporting channels.
The Act also proposes further future enhancements to protect workers including a wider definition of third-party harassment, which will increase the liability on employers where customers harass staff. It also increases the obligation on employers to take all reasonable steps.
As many workers are only engaged for a number of weeks, many businesses limit training to how to undertake the role. However, a worker can bring a claim for discrimination on day one of the engagement, so the following measures are important:
- Auditing the impact the risks posed to seasonal workers
- Ensure there is a clear policy document setting out standards of conduct and how to raise complaints
- Training should be provided to everyone, not just long-term employees
- Customers should be notified, mostly commonly in the form of signage, about what standard of behaviour is expected of them
Important further information is provided by the EHRC: Employer 8-step Guide & Technical Guidance.
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