The government has confirmed that agency workers will be included in the ban on ‘exploitative’ zero-hours contracts, guaranteeing them a minimum number of hours a week and notice when shifts are changed.

This was the headline amendment in its response to the consultation on how reform to zero-hours contracts would affect agency workers, published yesterday.

The government has so far published three out of five responses to consultations on aspects of its forthcoming Employment Rights Bill, which will enter the stage where amendments are debated in the Commons next week.

The key points of the consultation response were that zero-hours agency workers would gain a right to guaranteed hours “where the number of hours offered reflects the number of hours worked by the worker during a reference period”. This period is expected to be 12 weeks.

Agency workers

Agency workers to be included in zero-hours clampdown 

Zero-hours reforms should exclude agency workers, says APSCo

Secondly, they will receive the right to “reasonable notice” of shifts and a right to payment for any shifts that are cancelled or curtailed at short notice.

In its response, the government said it wanted “to ensure agency work does not become a loophole in the plans to end exploitative zero-hours contracts”.

“The government’s priority is to design solutions that work, addressing one-sided flexibility and providing agency workers with greater security, while also retaining necessary flexibility for employers in how they manage their workforces,” it added.

Industry bodies such as the Association of Professional Staffing Companies and the Recruitment and Employment Confederation (REC) had urged the government to leave agencies out of the clampdown, fearing it could reduce employers’ ability to fill unexpected resourcing gaps.

Who is liable?

One of the key questions posed by the consultation was which party would have the obligation to offer guaranteed hours, and the government has proposed that this would be the end hirer.

This is because employers rather than agencies would be “best placed to manage the flow of future work”, it suggested. A proposal for joint liability for guaranteeing hours was deemed too complex.

In regard to seasonal work or work that is “genuinely temporary”, this is an exception to the requirement to offer guaranteed hours. The government will consult on “what constitutes temporary need” before setting out elements of the legislation that cater for these arrangements.

The responsibility for providing notice of shifts would be apportioned between the employment agency and end hirer. Agencies will be responsible to pay for any short-notice cancellations or curtailments, but will be able to recoup the cost from end hirers.

Respondents to the consultation noted that either the end hirer or agency can be responsible for unreasonable notice, therefore sharing the burden is appropriate so a tribunal can apportion liability depending on circumstances and who is responsible.

Who pays?

Requiring the agency to pay for short-notice changes would mean fewer delays in workers receiving payment, as well as unnecessary administration, because they would likely already be on the agency’s payroll. It also suggested that employers and their agencies could modify their arrangements around recouping costs at a later date if considered appropriate.

Neil Carberry, chief executive of the REC, said of the response: “Agency workers are different to directly employed workers and have their own more stringent regulatory regime already.

“If the government is serious about the longer-term interest of workers, growth, and competitiveness, it needs to change tack. We are worried that the current approach will drive serious non-compliance and false self-employment, at workers’ cost.”

Paul Nowak, general secretary of the TUC, welcomed the proposed amendments: “The government is right to close this loophole. To properly crack down on exploitative zero hours contracts, agency workers have to be included. Agency workers will now benefit from more security over their working hours and better protections from bad working practices.”

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