New employment rights will have big impact on seasonal jobs

Seasonal staff, the current situation: Currently, seasonal staff play a vital role in Scotland’s economy. The agricultural, tourism, retail, entertainment and hospitality sectors all utilise seasonal staff to meet their labour needs. Staff are usually hired on fixed-term contracts of employment, or as a ‘casual’ or ‘zero-hours’ worker (for example, engaged on an ad hoc basis with no guarantee of work). Under the Bill, this is all set to change.

Changes to zero-hours contracts: The Bill does not seek to ban “exploitative” zero-hours contracts, but goes very far to address perceived “one-sided flexibility”. The new chapters inserted into the Employment Rights Act 1996 dealing with zero-hours contracts are lengthy and complex. Essentially, the provisions demand that employers notify eligible workers of their guaranteed hours' rights during an initial two-week period. Workers must then be offered guaranteed hours reflecting the hours they regularly work over a reference period, likely 12 weeks. This will be a recurring obligation on employers –who will be required to make an offer of guaranteed hours to workers not only at the start of employment, but also at the end of each reference period. Additionally, workers must receive reasonable notice of any shifts, or working time changes, with proportionate compensation for cancelled or shortened shifts. Failure to comply with these duties will entitle a worker to bring Employment Tribunal claims.

Changes to fixed-term contracts: Limited-term contracts, currently known as fixed-term contracts, will still be allowed, but must be offered only where “reasonable”. Critically, the question of how limited-term contracts interrelate with other relevant provisions in the Bill is still under discussion. For example, it’s still unclear if, when and how limited-term contracts will qualify for an offer of guaranteed hours. Elsewhere in the Bill, the two-year qualifying period for unfair dismissal claims has been repealed, making it a ‘day-one’ right subject to a statutory probation period which will permit lighter-touch dismissals for certain (to be determined) reasons. It remains to be seen how limited-term contracts will dovetail with that fundamental change.

The future of seasonal working in Scotland: There is a great deal of detail still to be set out in regulations, but based on what we know, all provisions discussed above are likely to have a profound impact. Paying staff for guaranteed hours based on peak season workloads, which do not align with off-peak periods, will undoubtedly lead to increased costs for employers. And whilst it is anticipated that workers can opt to reject an offer of guaranteed hours and remain on a zero or low-hours contract if they wish, that will not relieve an employer of the administrative burden and legal risk of having to inform a particular worker of their rights and make a guaranteed hours offer, if eligible. Therefore, the impenetrable legal minefield may put employers off using limited-term and/or zero-hours contracts at all, leading to fewer job opportunities across a range of sectors.

It's hard to disagree with the notion that every job should offer a basic level of stability and predictability, but the adoption of a ‘one-size-fits-all’ approach to worker protections, without considering the specific needs of different industries, could threaten the future viability of seasonal jobs in Scotland.

Fiona Cameron is a Partner, Gillespie Macandrew