Step 3: Reviewing employment types across you workforce for the Employment (Miscellaneous Provisions) Act 2018

The Employment (Miscellaneous Provisions) Act 2018, (the Act) is one of the most significant pieces of employment legislation in a generation. The government’s key objective in drafting the Act was to improve the security and predictability of working hours for employees on insecure contracts and those working variable hours. To achieve this objective, the Act imposes a range of new employment law obligations on employers. In this series of guidance notes, we take a look at practical steps you should take as an employer to ensure you remain on the right side of the new laws. In this, the third in our series of guidance notes, we take a look at workforce planning steps you should take to assess the rights certain employees might acquire under the Act. There are also three other guides covering the new legislation. These are:

• Step 1: Statement of core terms.
• Step 2: Reviewing existing employment documentation.
• Step 4: Estimate the impact on minimum payments and banded hours.

The Act comes into effect from 4^th March 2019.

Review the types of employment across your workforce

If your business has been using zero hour contracts, you will need to stop using the practice by March 4^th.  The Act prohibits the use of zero hour contracts except in situations of genuine casual employment or where they are essential to allow you to provide cover in emergency or short-term scenarios. In practice, this will mean your employment documentation must specify a number of hours of work (which must be greater than zero) that you reasonably expect employees to work both per day and per week.

As and when contracts

As and when contracts are still permitted under the Act. The main distinction between a zero hour contract and an ‘as and when’ contract is the absence of mutual obligation. Under an ‘as and when’ arrangement, there is no obligation on the employer to provide a certain number of hours and likewise the employee is under no obligation to accept any hours offered.

Banded hours’ provisions

Employees enjoy a new right to be placed in a band of hours that more accurately reflects the hours they habitually work over a 12-month reference period as against their contractual hours. In operation, employees who demonstrate that their average weekly hours (over the previous 12 months of employment) fall into a particular band will be guaranteed payment for the minimum number of hours in that band of hours.

Practical steps to take

We recommend that you:

1. Review any casual or short-term employment arrangements.
2. If your business has been relying on a zero hour contract arrangement with employees, any such employees will need to receive a set number of hours (greater than zero) which you reasonably expect them to work per day and per week.
3. Review time records to see what hours variable hours’ workers are actually working over a 12-month reference period.
4. Monitor the staff roster carefully. Where possible, identify busy and quiet periods to properly allocate employees.
5. If you identify a need to take on more employees or allocate more hours on a temporary basis, then document why this was necessary and on an ongoing basis. Employees will be entitled to an explanation if they are being refused entry to a particular band of hours.

The next guidance note in this series will take a look at the banded hours provisions in more detail along with the financial impact of minimum payments. To find out more about how to prepare your business for these new employment law requirements, call our 24-hour advice line on 0818 923 923.