One-sided flexibility

The government has launched a further consultation as part of the Good Work Plan seeking views on proposals to address the problem identified by the Low Pay Commission (LPC) of one-sided flexibility in the labour market.

One of the recommendations of the Taylor Review of Modern Working Practices (July 2017) was that ‘the government should ask the LPC to consider the design and impacts of the introduction of a higher NMW (National Minimum Wage) rate for hours that are not guaranteed as part of the contract’ as a means to address the issue of one-sided flexibility. The government accepted this recommendation and asked the LPC to investigate the feasibility and design of an NMW premium for non-guaranteed hours, alongside any alternative proposals that would tackle one-sided flexibility. The LPC published their findings and response to this recommendation in December 2018. The LPC concurred with the Taylor Review that one-sided flexibility is a problem that exists within some parts of the labour market, where a minority of employers misuse flexible working arrangements and recommended that government consider ways to specifically measure the scale of one-sided flexibility. However, the LPC did not recommend the proposal of a higher NMW for non-guaranteed hours (or “premium”). . In the consultation paper launched today the government confirms that they will not take forward the proposal for a higher NMW for non-guaranteed hours.

The LPC recommended an alternative package of measures including:

• A right to switch to a contract which reflects the normal hours worked;
• A right to reasonable notice of work schedule;
• Compensation for shift cancellation or curtailment without reasonable notice; and
• Information for workers.

The government has already announced in the Good Work Plan that it will legislate to introduce a right for all workers to switch to a more predictable work pattern, enforceable through Employment Tribunals and is enacting legislation to extend the right to a written statement to all workers, as well as employees, and to expand the content of the written statement.

This consultation aims to identify the detail behind the LPC’s remaining two recommendations regarding a right to reasonable notice of work schedules, and a policy to provide compensation for shifts that are cancelled at short-notice. The government is seeking to identify what current practice exists in relation to these two recommendations, what impacts they would have on employers and workers, how best the policies could be designed to ensure they effectively address one-sided flexibility and how any legislative policies can be supplemented with guidelines for employers.

The consultation seeks views on:

• What would be defined as ‘reasonable notice’ of work schedules;
• Whether this would vary between different types of work or contexts;
• What working hours should be in scope;
• What the impact would be of the introduction of the right to reasonable notice of work schedules;
• Whether the right to a reasonable notice of work schedules should be guaranteed from the start of someone’s employment, or whether an individual would need to work for a certain amount of time before becoming eligible and, if so, how long;
• Whether government should set a single notice period for work schedules which applies across all employers, or whether certain employers / sectors should be allowed some degree of flexibility from the “baseline” notice period and, if so, which employers/sectors;
• What would be an appropriate “baseline” notice period and degree of flexibility;
• Whether there are any instances where reasonable notice of a work schedule would not need to be given;
• How reasonable notice of a work schedule would be recorded;
• What the penalty for non-compliance should be; and
• What should be contained in a statutory Code of Practice.

In respect of the proposal of a right to compensation for shift cancellation or curtailment without reasonable notice, the government is seeking views on:

• Whether shifts or hours of work are cancelled by employers at short notice and, if so, why, and how often and on what notice;
• Whether workers receive compensation if shifts or hours of work are cancelled;
• Whether compensation varies by different types of work/worker; and
• Any best practice examples from areas of industry where workers receive compensation for shifts or hours of work which are cancelled.

If adopted, this policy would mean that if a worker has their hours cancelled with less than “x” days’ notice (where “x” is a time below which is deemed “short-notice”), the employer would be liable to pay a level of compensation, irrespective of whether the hours are replaced. The LPC have put forward 3 options for the level of compensation, which the consultation is seeking views on:

• The value of the shift/hours in question;
• A worker’s appropriate NMW rate multiplied by their scheduled number of hours cancelled; or
• A multiple of a worker’s appropriate NMW rate, e.g. three times the NMW.

The consultation also seeks views on whether this should be a ‘day 1’ right or subject to a qualifying period of employment.

The consultation closes on 11 October.

Parental leave

A consultation has also been launched on changes to parental leave entitlements as the government says it wants these to “better reflect our modern society and the desire to share childcare more equally”.

The consultation:

• Questions whether statutory paternity leave for fathers and same sex partners should be changed;
• Seeks suggestions on ways in which shared parental leave (introduced in 2015) could be improved;
• Proposes a new Neonatal Leave and Pay entitlement for parents of premature and sick babies who need to spent a prolonged period in neonatal care following birth;
• Proposes that employers should publish their pay and flexible working policies and questions whether there should be a requirements for employers to consider advertising jobs as flexible.

The consultation closes on 11 October 2019 in relation to neonatal leave and pay and transparency of policies and on 29 November 2019 in relation to parental leave and pay.

In her final days as Prime Minister Theresa May is advancing an ambitious programme of proposed legislation; however, it remains to be seen whether any of these proposals will be a priority for her successor.