Shifts and precarious workers

The statutory "reasonable notice" baseline with presumptions (for example, notice given less than a specified time is presumed unreasonable) creates particular complications for emergency cover arrangements. Workers receive compensation for short-notice changes on a formula basis that can equal the full value of lost hours. Multi-worker requests are expressly covered, widening exposure when contacting larger rosters.

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The emergency cover dilemma illustrates the practical friction. An employee calls their manager the night before to say that they are unwell and unlikely to make it into work the following day. The manager knows that they will need to find cover, and so contacts ten staff members that evening to see if any of them is available and willing to work the following day's shift. Each contacted worker who receives less than the specified notice period enjoys a statutory presumption of unreasonable notice. If a shift is cancelled, moved, or curtailed at short notice, each contact triggers a payment obligation - even though only one worker ultimately accepts the shift. The employer must either pay compensation to all contacted workers or issue compliant exception notices.

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The statutory framework appears to assume that shift changes are employer-initiated management decisions rather than operational necessities. A hospital facing sudden staff sickness must choose between contacting multiple staff and incurring cascading payment liabilities, contacting staff sequentially and risking delays in securing cover, or maintaining expensive standby pools with guaranteed payments. Each option imposes costs that may exceed the value of the shift itself.

These payments are elevated to preferential debts in insolvency, potentially impacting rescue financing and distributions. While the chances are that the liability for shift-payment compensatory awards is likely to be small in most cases, the preferential debt status could create particular complications for businesses in financial distress. Lenders providing rescue financing must account for potentially substantial shift-payment liabilities ranking ahead of their security, whilst administrators face complex calculations to quantify preferential claims across multiple low-hours workers. The interaction with company voluntary arrangements (CVAs) is equally problematic: whether shift-payment debts can be compromised, or whether their preferential status requires full payment as a condition of CVA approval, remains unclear. It's hard to see the rationale behind the way in which these payments will be treated: if it's that important to protect them, why not also protect employment tribunal awards for arguably far more serious wrongdoing such as discrimination?

Immediate actions for employers and how we can help

Without timely and pragmatic secondary legislation and improved tribunal capacity, the risk is a wide compliance gap - particularly among smaller employers - paired with heightened litigation and enforcement exposure. Employers must act now to prepare for these changes, and specialist legal guidance will be essential for to complying with the complex implementation period ahead.