New Part 2 of Schedule A1 to the ERA 1996 creates new rights to reasonable notice of shifts and changes to these for agency workers, as defined in new section 27BV of the ERA 1996, which is similar to the rights to reasonable notice for directly engaged workers created by section 2.
	Paragraph 13 sets out the application of Part 2 to shifts worked by agency workers.
	Subparagraph (1) provides that Part 2 applies to a shift that would be, would have been or is being worked by an agency worker.
	Subparagraphs (2) to (4) provide that Part 2 does not apply to an excluded shift and provide a power to specify what constitutes an "excluded shift" in regulations. In particular, subparagraph (4) provides that shifts may be excluded by reference the number of hours to be worked during the shift, whether alone or taken together with other shifts, being more than a specified number and a shift corresponding to the time of a shift provided for by a worker’s contract between the agency worker and a work-finding agency or another person involved in the supply or payment of the agency worker.
	Subparagraph (5) provides that in Part 2, ‘the work-finding agency’ is the agency with which the agency worker has a worker’s contract or an arrangement and by virtue of which they would work, would have worked or are working the shift and ‘the hirer’ is the person for and under the supervision and direction of whom the agency worker would work, would have worked or is working the shift.
	Paragraph 14 creates a right to reasonable notice of shifts for agency workers.
	Subparagraph (1) provides that an agency worker is entitled to be given reasonable notice of a shift by the work-finding agency or the hirer that they are required or requested to work, i.e. shifts that the agency worker is obliged to undertake by virtue of the worker’s contract or arrangement between the agency worker and the work-finding agency, or that the agency worker is requested to undertake. Accordingly, notice of a shift can be provided by the work-finding agency or the hirer directly but either way the notice must be reasonable.
	What is "reasonable" will depend on all the circumstances of a case. Subparagraph (2) creates a presumption that notice is not reasonable where it is given less than an amount of time to be specified in regulations by the Secretary of State before the time that the shift is due to start.
	Accordingly, in a claim to a tribunal that notice given to an agency worker was not reasonable, the tribunal must find the notice to be unreasonable where it is given within less than the specified timeframe unless the work-finding agency or hirer can show that the notice was reasonable in the circumstances.
	For example, notice of a shift given in less than the specified timeframe could be reasonable where an agency worker is needed to provide cover for a worker who has just called in sick. Equally, notice of longer than the specified timeframe may be unreasonable. For example, if the timeframe for presumed unreasonable notice is 7 days but the hirer could reasonably have been expected to plan shifts sooner and accordingly ensure that the agency worker is provided with 14 days’ notice, notice of 7 days could be unreasonable.
	Subparagraph (3) defines ‘notice of a shift’ for this paragraph, as well as in paragraphs 15 and 16, as notice of how many hours are to be worked and when the shift is to start and end.
	Paragraph 15 creates a right to reasonable notice of cancellations of or changes to a shift for agency workers.
	Subparagraph (2) provides that (subject to paragraph 18), agency workers are entitled to reasonable notice from the work-finding agency or the hirer if a shift is cancelled, there is a change to when the shift is to start or end, or where there is a reduction in the number of hours to be worked during the shift because of a break in the shift.
	Subparagraph (1) provides that the duty in paragraph (2) applies when the agency worker has been given notice of a shift by the work-finding agency or hirer. Further, where the shift is one that the agency worker was requested to work, the agency worker must have agreed to work that shift.
	Subparagraph (3) creates a presumption that, unless the contrary is shown:
notice of cancelling the shift is not reasonable if given less than an amount of time to be specified in regulations before the shift would have started;
notice of change to when a shift will start is not reasonable if it is given less than an amount of time to be specified in regulations before the earlier of when the shift would have started and when the shift will now start; and
notice of any other change is not reasonable notice if it is given less than an amount of time to be specified in regulations before the shift is due to start or if it is given on or after the start of the shift.
	Paragraph 16 makes provision concerning the liability of the work-finding agency and hirer .
	Subparagraph (1) provides that the work-finding agency is liable for a breach of paragraph 14 or 15 to the extent that they are responsible for the breach, i.e., to the extent that they are responsible for the agency worker not getting reasonable notice.
	Likewise, subparagraph (2) provides that the hirer is liable for a breach of paragraph 14 or 15 to the extent that they are is responsible for the breach, , i.e., to the extent that they are responsible for the agency worker not getting reasonable notice. Accordingly, both the work-finding agency and the hirer may be liable for a failure to provide reasonable notice, for example, if the hirer did not provide notice to the work-finding agency that they needed the agency worker in sufficient time and then the work-finding agency was then slow to pass that notice onto the agency worker.
	Subparagraph (3) however provides that the hirer is not responsible, and therefore not liable, for a breach of paragraph 14 or 15, if the hirer gives notice to the work-finding agency of the shift, or cancellation or change to the shift, and that notice enables the work-finding agency to give reasonable notice to the agency worker. Accordingly, the work-finding agency should be solely liable for failure to provide reasonable notice if the hirer provided notice to the work-finding agency in sufficient time but they fail to pass that onto the agency worker within a timeframe that provides them with reasonable notice.
	Subparagraph (4) provides that regulations may provide that the work-finding agency is solely responsible, and thus liable, for a breach of paragraph 14 or 15 where the hirer is a person of a certain description to be defined in the regulations. This will allow for exemption from liability of persons which will otherwise be liable as hirers. In such cases, the agency worker will however still be entitled to reasonable notice.
	Paragraph 17 sets out supplementary details to paragraphs 14 to 16.
	Subparagraph (1) provides that an agency worker is not entitled to reasonable notice of a shift under paragraph 14 where the agency worker suggests working a shift (for example, where the agency worker suggests working overtime). However, where the work-finding agency or hirer agrees to the agency worker’s suggestion but they change or cancel that shift, the agency worker is entitled to reasonable notice of changes to or cancellation of the shift under paragraph 15.
	Subparagraph (2) clarifies that the rights to reasonable notice in paragraphs 14 and 15 apply even if a request is made to multiple workers to work the same shift (e.g. via a group text message or app) but not all of them are needed to work that shift.
	Subparagraph (3) then clarifies that, in such scenarios, a cancellation includes an agency worker not being needed to work a shift because others have agreed to work it. Accordingly, agency workers in such scenarios are still entitled to be given reasonable notice of them not being needed to work a shift that they have been requested to work and have agreed to work.
	Subparagraph (4) provides that the Secretary of State may by regulations make provision about the form and manner in which notice under paragraphs 14, 15 and 16 must be given, and when notice under those paragraphs is to be treated as having been given.
	Paragraph 18 sets out the interaction between the right to reasonable notice of cancellations and changes to shifts and the right to payment for shifts cancelled, moved, or curtailed at short notice for agency workers as set out in Part 3 of new Schedule A1 to the ERA 1996.
	Subparagraph (1) provides that, where a work-finding agency is required to make a payment to an agency worker under paragraph 22 in relation to a shift that is cancelled, moved or curtailed at short notice, or would have been required to make such a payment, but was excepted from doing so under regulations made under paragraph 24(1)(c), then the right to reasonable notice at paragraph 15(2) is taken to have not applied to that cancellation, movement or curtailment.
	Therefore, where the work-finding agency is required to make a payment under paragraph 22 for short notice cancellation, movement or curtailment of a shift, an agency worker cannot also receive compensation for failure to provide reasonable notice of the same cancellation, movement or curtailment. Similarly, where a work-finding agency is excepted from making such a payment under paragraph 22 and therefore the agency worker is not entitled to such payment, the agency worker is also not entitled to compensation for failure to provide reasonable notice of the same cancellation, movement of curtailment.
	Subparagraph (2) provides that the terms used have the same meaning as in paragraph 22.
	Paragraph 19 makes provision for agency workers to enforce the rights to reasonable notice granted in paragraphs 14 and 15.
	Subparagraph (1) provides that agency workers can bring a claim to an employment tribunal where they have not received reasonable notice contrary to paragraph 14 and 15.
	Subparagraph (2) provides that tribunals must have regard to matters to be set out in regulations made by the Secretary of State, as appropriate, when determining whether reasonable notice has been given.
	Subparagraphs (3) to (5) make provision about time limits for bringing a claim under subparagraph (1).
	Under subparagraph (3), a complaint must be brought within six months of the relevant date. For example, where the complaint is that reasonable notice was not given of a cancellation of a shift, the six months runs from the date on which the shift was due to start.
	Subparagraph (4) enables tribunals to extend the time limits at subparagraph (3) by a reasonable period where the tribunal is satisfied that it was not reasonably practicable for the claim to be presented before then.
	Subparagraph (5) provides that section 207B of the ERA 1996 applies so that the time limit at subparagraph (3) can be extended to allow for conciliation to take place.
	Paragraph 20 makes provision about the remedies that a tribunal may award where it finds a complaint under paragraph 19 well-founded.
	Subparagraph (1)(a) provides that, where an employment tribunal finds a complaint under paragraph 19 well-founded, the tribunal must declare that to be the case, i.e., it must make a declaration that the agency worker was provided with unreasonable notice in breach of paragraph 14 or 15.
	Subparagraphs (1)(b) and (2) enable an employment tribunal to make an order for the respondent, i.e., the work-finding agency and/or hirer, to pay the agency worker compensation for financial loss suffered by the agency worker as a result of the unreasonable notice which the tribunal considers fair in the circumstances. Under subparagraph (2) however, the compensation may not exceed the maximum amount to be specified by the Secretary of State in regulations.
	Subparagraph (3) requires an employment tribunal when ascertaining the agency worker’s financial loss to apply the principle established at common law requiring the complainant to mitigate their loss.
	Subparagraph (4) provides that where a tribunal makes an award of compensation to an agency worker and both the work-finding agency and the hirer are respondents, the amount of compensation payable by each of them is to be an amount the tribunal considers fair having regard to the extent of the respondent’s responsibility for the breach related to the complaint. Therefore, where both the work-finding agency and the hirer are responsible, and in turn liable, for the failure to provide reasonable notice (as determined in accordance with paragraph 16) and both have been added as respondents to the claim, the compensation payable should be split between them to the extent that they are each responsible for the failure to provide reasonable notice.
Part 1: Employment Rights Zero hours workers, etc New Part 2: Shifts: rights to reasonable notice