The Employment Rights Bill and seasonal workers

Some of the provisions in the Employment Rights Bill ('the Bill') will significantly impact the use of seasonal workers. Changes aimed at ending 'one sided flexibility' include guaranteed hours for those on zero-hours or low-hours contracts and protection against unfair dismissal from day one.

Zero-hours and low-hours contracts

For zero-hours and 'low-hours' workers (there will be consultation on what constitutes 'low-hours') employers will need to:

• Inform them of their guaranteed hours' rights during an initial 2-week period; and
• At the end of each reference period (expected to be 12 weeks), offer them a guaranteed hours contract reflecting the actual hours worked during that reference period - although they can opt to remain on a zero or low-hours contract if they prefer.

The offer must set out the days and times when the employer will make work available, or a working pattern of days and times. A worker will have until the end of a 'response period' to accept the offer – it is not yet clear how long this will be. An offer must be made after the initial reference period and after each subsequent reference period.

The offer of guaranteed hours must be in terms of a permanent contract, unless a fixed term is reasonable and there is a 'limiting event' e.g. the worker is needed for a specific task or until the occurrence or failure of an event, or there is only a temporary work need. Depending on what is viewed as 'reasonable', these circumstances could arguably cover seasonal fluctuations in work.

Currently any rights in relation to shift scheduling depend on the terms of the contract. The Bill introduces an obligation on employers to:

• Give reasonable notice of shifts, shift changes and cancellations - there will be consultation on what is 'reasonable'; and
• Pay compensation for shifts cancelled, moved or curtailed at short notice - there will be consultation on the amount of compensation.

These provisions will apply to all workers, not just employees, and a worker does not need to have been engaged continuously throughout the reference period. Agency workers will be included - with the expectation that hirers will be responsible for offering the guaranteed hours contract in most circumstances. Exclusions will be permitted in terms of a collective agreement, provided it is incorporated into the individual's contract.

Unfair dismissal

Currently, employees need two years' service to claim unfair dismissal (unless they are pursuing a claim for automatic unfair dismissal). From autumn 2026 at the earliest, this will change to allow unfair dismissal claims from day one of employment. 

However, there will be a 'probation period' (expected to be 9 months) during which there will be a 'lighter touch' process allowing fair dismissal for capability, conduct, statutory restriction or some other substantial reason (but not redundancy). There will be a consultation on how this will operate – it has been suggested that it should involve holding a meeting with the employee to explain the concerns at which the employee could choose to be accompanied. The Government is considering lower compensation for unfair dismissals during this probation period.

Other new day one rights

The three-day waiting period for statutory sick pay will be removed – SSP will become payable from the first day of incapacity for work. Also, those earning below the lower earnings limit will become entitled to the lower of the statutory rate of SSP or 80% of normal weekly earnings. 

Employees will have the right to take paternity leave (currently only available after 26 weeks' service) and unpaid parental leave (currently only available after one year's service) from the first day of employment.

Preparing for the changes

Although much of the detail is still to follow and the changes will not come into force before 2026, it would be good practice for employers engaging seasonal workers to review operations just now in preparation:

• Audit the workforce to identify working patterns and the numbers engaged on zero-hours or low-hours contracts.
• Review the potential impact of the 12-week reference period on zero-hours and low-hours workers.
• Assess and document seasonal fluctuations to help support arguments around temporary work needs.
• Consider the extent to which fixed term contracts could be used to deal with fluctuating requirements.
• Review the process for scheduling work and changing or cancelling shifts (including any AI tools) to check whether workers are given appropriate notice.
• Review recruitment processes and how probationary periods are managed.

Workbox by Brodies is our online resource which provides subscribers with access to guidance and templates covering the full spectrum of HR issues arising from the Bill's reforms. To arrange a short online demo, please get in touch with a member of our Employment and Immigration team.