Will 2019 bring predictive scheduling laws to the UK?

Last updated: April 2021. Predictive scheduling laws have yet to arrive on UK shores, but arguably they have never been more needed.

The use (or misuse) of zero-hours contracts is probably the most contentious subject in UK employment law.

But regardless of our opinions on these controversial contracts, it's clear that they emerged in response to a need for a more flexible workforce.

The downside of this flexibility is that it comes at the expense of predictability for employees and other workers.

Many non-salaried workers are accustomed to having only a day or two's notice of upcoming shifts, offering no ability to plan their social life around their work schedule or predict the size of their next pay cheque.

There is a balance to be found between employee wellbeing and business flexibility, and many people would argue that balance needs addressing.

There are many ways to tackle this issue. One method that some governments have been using is called predictive scheduling, also known as fair scheduling. This approach involves regulating rotas of certain businesses to ensure schedules are fair and predictable for employees. Although rules vary between jurisdiction, most predictive scheduling laws involve a minimum notice period for upcoming shifts.

In other words, employers must communicate the rota with their employees in plenty of time.

Predictive scheduling recently made headlines in the US when New York City joined other cities in implementing tough new rules to help retail and fast-food employees have more predictable schedules.

While there are no such laws in the UK, it only seems a matter of time before they make the hop across the Atlantic.

Whether you want to prepare well in advance for predictive scheduling in the UK, or simply want to give your employees a fairer rota, here's everything you need to know about predictive scheduling.

What are the rules?

Predictive scheduling laws vary in their scope and strength across cities, states, and countries, but here are some of the most common measures:

• Shift notice. Workers must be notified of upcoming shifts in plenty of time, usually around the two week mark.
• Penalty pay. If there are rota changes after the required notice period, employees receive extra pay to compensate. This varies significantly between areas, and may amount to 'half-time', a couple of hours' of the employee's usual wage, or a flat rate (such as £50). The figure usually depends on how much notice the employee was given, and the extent of the scheduling change.
• 'Clopenings'. The NYC predictive scheduling laws banned employees from closing fast-food establishments and reopening them the following day, unless there was at least an 11-hour gap between shifts. This is similar to current EU rules on breaks between shifts.
• Rota records. Businesses may be asked to maintain and store rota records for multiple years.
• Visibility. Rotas must be displayed in an area that's easily accessible to all employees on the rota. 
• Exceptions. Most variations of predictive scheduling laws have exceptions for unforeseen circumstances such as illness. Shift swaps agreed between employees close to the shift date are also usually exempt.

Affected industries

In almost every instance of predictive scheduling, the rules only apply to a very specific set of businesses. Again, these vary depending on the jurisdiction, but generally the rules target one or more of the following industries:

• Retail
• Fast-food or limited food-service establishments
• Hospitality

There are also (usually) restrictions based on the size of the company, such as:

• Employee numbers (within the city, state, country, or worldwide)
• Number of locations (usually worldwide)

What employers need to do

UK employers needn't worry about predictive scheduling laws right now, but given their usage in the US and some European countries, it seems inevitable that similar rules may be applied EU-wide or in the UK specifically — so it's smart to at least be aware of the potential changes you might need to make.

And your employees aren't going to complain if you start publishing the rota further in advance!

Here are some of the changes businesses have made under predictive scheduling laws:

• Analyse past rotas. You'll be under pressure to get staffing levels right weeks ahead of time, so instead of relying on hunches alone, looking back through previous years' data can be a big help.
• Start storing old rotas. If you throw away rota and timesheet information at the end of each pay period, stop! Instead, store them and organise them so that it's easy to revisit old rota data as we mentioned in the previous point.
• Go digital. Pen-and-paper rotas might be what you've used for decades, but now that you need to keep accurate rota records for years to come, going digital should be a top priority.
• Switch to rota software. Spreadsheets aren't built for rota planning — let alone communicating shift times with employees. As rota communication becomes even more crucial under tighter scheduling rules, software that can notify staff about shift changes instantly is a smart investment.
• Form a 'voluntary standby list'. Some jurisdictions with predictive scheduling rules reduce the burden on employers by allowing workers to volunteer to be on a standby list. When staff on this list are called in at short notice, the employer doesn't need to pay them extra. Employees on the list should be able to turn down this extra work with no consequences — similar to UK workers on zero-hours contracts.
• Provide good faith estimate of work schedules. Under Oregon's rules, new hires must be provided with an estimate of the median number of hours they should expect to work each month.

What predictive scheduling regulations might apply in the UK?

We don't know. However, it's likely that any legislation will come from the angle of regulating zero-hours contracts rather than scheduling in general.

We predict that regulations will start off by offering compensation to workers who turn up to work only to find that their shift's cancelled or they're not needed — with the compensation amounting to travel costs and several hours of pay. There's already been a push for such a move, and it could, realistically, pick up bipartisan support.

Assuming that predictive scheduling regulations are enacted by the current Conservative-DUP government, we expect to see plenty of exceptions that allow businesses to remain in the driving seat. For example, if a two-week shift notice limit is announced, it's likely we'll see 'voluntary standby lists' coupled with this limit — essentially allowing businesses a way around paying most compensation wages.

If the changes are made under a Labour government, we would clearly expect to see the balance shift further in favour of employees, with businesses facing a higher administrative burden and losing more flexibility.

Neither approach is 'right' — it all depends on how your company manages the rota, predicts staffing requirements and views the role of flexible contracts.

Predictive Scheduling in the UK: New Developments

Update February 2021

The government appears to have shelved plans for labour market reform that it had previously expressed an intention to implement.

Update November 2018

The government has proposed implementing some of the recommendations made in the Taylor review of modern working practices.

In particular, it's thought that they're looking at notice periods and compensation for cancelled shifts.

We'll update this article with any new predictive scheduling developments that take place in the UK, so you'll be among the first to know what you'll need to do to be compliant with any upcoming regulations.

Summary

You might not need to worry about predictive scheduling rules in England, Wales, Scotland or Northern Ireland just yet, but it's important to be aware of their increasing role in employment law overseas — as it could well give us a glimpse into the future here in the UK.

Fair scheduling should play a part at every business, regardless of local regulations. And smart rota planning is the first step towards it.