A good chunk of the Employment Rights Act 2025 is given over to a right that is not yet in force – the right to be offered guaranteed hours. This is the method that the Government has chosen for tackling the issue of ‘exploitative’ zero hours contracts and it is an extremely complicated provision. It takes up the first 17 pages of the Act itself and there is a whole schedule applying the rights to agency workers which is another 17 (almost identical) pages. 

But even that huge amount of detail is not enough. The Act itself leaves many of the key parts of the new right – details such as who it applies to and what it consists of – to subsequent regulations. These regulations are, if anything, going to have to be even more detailed and complex than the Act itself. It is not surprising that there is currently no clear timetable for the introduction of this new right which has simply been scheduled for some time in 2027. 

But we do now have a consultation document from the Government that fleshes out some of this extra detail. So let’s take a look.

Who does the right apply to? 

The right to guaranteed hours does not just apply to zero-hours workers. The Act allows regulations to set a threshold of guaranteed hours per week above which the right will not apply. I wrote about this issue back in December 2024 when the then Employment Rights Minister Justin Madders suggested in Parliament that there was an argument that anyone below ‘full-time hours’ should be within scope.  

Eighteen months on from that comment the Government is seeking views on what the threshold should be. It does not spend much time debating the pros and cons of various options but then says:

The government’s preference is to set the threshold within the range of 8 to 20 hours per week – on the basis that options within this range are more likely to provide a favourable balance of costs and benefits

We then get a question asking respondents for their preferred option. 

So I think we can tick this issue as ‘yet to be resolved’ – but we at least have a clearer view of the range the government is considering.

The reference period – and ‘subsequent’ reference periods

The basis of the new right is that the employer will have to count the number of hours worked by the worker over a ‘reference period’ to determine whether they have exceeded their guaranteed hours in such a way as to trigger the obligation to make a guaranteed hours offer. The government has made it clear from the outset that they envisaged a 12-week reference period and they repeat that in this consultation. There is a question where respondees can express a preference for a longer period, but I think we can take that 12-week period as pretty much set in stone. 

What surprises me it what happens after the initial reference period. I had assumed that each subsequent reference period would also be set at 12 weeks, but the Government do not seem at all committed to that idea. In fact, they suggest that each subsequent reference period could be much longer, placing less of an administrative burden on employers. Respondees are asked whether they would prefer each subsequent reference period to be 12 weeks, 26 weeks, 52 weeks or some other period. 

This is a big deal. Imagine a worker gets through the first 12 weeks of their employment doing no more than their guaranteed hours or works so infrequently that they do not qualify for a guaranteed hours offer. The Government is suggesting that it could be another year or so before the employer would have to look at the situation again. 

In fact the consultation goes further than that. Because the government makes it clear that once the initial reference period has ended there may be a considerable delay before each subsequent reference period begins. 

This was an issue that I had been wondering about. The 2025 Act specifically gives the Secretary of State the power to determine when subsequent reference periods begin and that always struck me as odd because it would seem that the natural thing to do would be to make one period follow immediately after another – in the same way that each holiday year begins as soon as the previous holiday years has ended. 

But if a new reference period starts as soon as the old one ends, then things get complicated. At the end of a reference period the employer has to be given time to make its calculations and offer the worker a contract setting out the guaranteed hours. This period of time is called the ‘offer period’ and has to be set by regulations. Once the offer has been made the worker then has a period time to consider whether or not to accept the offer. This is referred to in the Act as the ‘response period’ and that must also be set by regulations. As it happens this consultation does not ask how long either of these periods should be, but let’s not worry about that now. 

Suppose both the offer and response periods are set at two weeks. That would mean that it could be as long as four weeks after the end of the reference period when the contract containing the new guaranteed hours comes into effect. If by that time we were already four weeks into the subsequent reference period that would make the task of working out when and how often the worker had worked in excess of their guaranteed hours even more complicated. So it makes sense that there would be some sort of break while any new contractual arrangements are agreed and put in place. 

The government does not express a clear preference as to whether there should be break between reference periods, it just asks whether or not there should be one. It doesn’t even ask how long that break should be. But in the scenario it sets out explaining how a gap between reference periods would work it uses the example of a 26-week gap. This would be quite something. If the employer could get through the first 12 weeks without triggering the need for a guaranteed hours offer it could be a full six months before it need give another thought to the hours that it is offering the worker.

The combination of a lengthy gap between reference periods and long subsequent reference period will create a clear incentive for employers to avoid offering too many hours to workers in the first 12 weeks of their employment, after which they will essentially feel free to ignore the new right altogether for a year or so. There is a provision in the Act that is aimed at preventing an employer from deliberately limiting the hours offered to a worker in this way (it’s inserted as new S.27BG(4) of the Employment Rights Act 1996) but good luck to any zero hours worker in finding clear evidence of that happening.

I expect the responses to this proposal from the trade union side to be unenthusiastic.

Regularity requirements

The next issue that the consultation grapples with is the requirement of regularity. The Act says that the right to a guaranteed hours offer will apply where the worker works in excess of their guaranteed hours over the reference period and those hours meet ‘such conditions as to number, regularity or otherwise’ as are set out in Regulations. 

In asking about this, the government sets out two options – and does not seem to have any preference of one over the other. Option A is based on a ‘weekly distribution’ requirement. Option B is a weekly distribution and a total hours requirement. 

Under ‘option A’ the hours worked in the reference period would have to be distributed across a minimum number of weeks (the example given is 8). So if the worker worked well in excess of their guaranteed hours overall but only worked in seven of the 12 weeks in the reference period then that would not be enough to qualify. ‘Option B’ would be even more strict.  Not only would the worker have to work in, for example, 8 of the 12 weeks, but would also have to work a certain number of hours in excess of their guaranteed hours (spread across the whole reference period) in order to qualify. 

I have to say that this part of the consultation paper strikes me as not fully thought through. Choosing option A or B still leaves a lot of questions about exactly what the threshold should be and I’m not sure either of the options quite make sense. I am however going to resist going down this particular rabbit hole for now. Let’s just say that the Government has yet to set out the details of exactly what criteria will be used and how they will be applied. 

Seasonal work

One of the fundamental difficulties with the right to guaranteed hours is that it assumes that a working pattern spanning the previous 12 weeks is a reliable guide to the working pattern the employer is able to provide for the remainder of the worker’s employment. I’ve written about this problem already and I won’t rehash the argument here. When it comes to the consultation the Government is seeking views on any special cases of ‘temporary need’ that it may not have considered. This is a good opportunity for employers whose work is subject to seasonal fluctuations to explain the problem that the right to guaranteed hours poses for them. 

The guaranteed hours offer 

Assuming that the work done over the reference period means that the employer must make a guaranteed hours offer, what should that offer be? This is actually a complicated question. The new contract will not only need to reflect the number of hours worked across the reference period but will also have to set out when the worker can be asked to work. Suppose the worker has consistently worked a 35 hour week, but the working pattern has been hugely variable – including work at night and weekends. To what extent does that need to be reflected in the guaranteed hours offer? How do you stop the employer from making an offer that the worker will inevitably have to turn down because it requires that the guaranteed hours be worked at times when the worker is not available for work? 

There is no mention of this issue in the consultation – even though the Act itself creates a specific regulation making power to deal with it. In the absence of such regulations the employer is free to offer whatever working pattern it chooses so long as the offer reflects the overall number of hours worked in the reference period. 

The consultation does at least address that issue. It puts forward two options. Either the offer could reflect the ‘mean average’ number of hours per week or the ‘median average’. The key difference is that a median average is less influenced by outlier weeks. So while one particularly busy week out of the 12 when the worker worked for 60 hours could significantly increase the guaranteed hours offer if the mean average was used, it would have only a minimal impact on the median average. Its a clear choice and the government seems to express no particular preference – but it strikes me as very odd that this is the issue that the government is consulting on rather than the pattern of work that the employer will have to offer. As we get further into this consultation document I get the growing sense that it has been finished off in something of a hurry.

Is that it?

Sometimes you read a government consultation and it is clear exactly what the government wants to do and how it wants to do it. The purpose of the consultation is to sense check that approach and make sure it has not missed important unintended consequences. That is clearly not what we are dealing with here. 

This consultation feels more like a work in progress. We get some insight into what the Government is planning but no sense that it has really grappled with the difficulties that this new right presents. The issue of seasonal work is not seriously addressed and I am surprised that the government has not considered how a guaranteed hours offer should reflect the normal working pattern of the worker concerned. I really do think something has gone wrong with the questions about the regularity of the work – it might be a good idea for someone in DBT to have another look at that section. 

In any event, more detailed questions are needed if the Government is going to consult on all of the issues that the regulations will have to cover. There may need to be a further consultation exercise before the regulations can be finalised.

Remedies

One issue that is missing altogether is remedy. Regulations need to specify what multiple of a weeks’ pay could be awarded to a worker whose employer has failed to meet the requirements in relation to making a guaranteed hours offer. Perhaps one reason this was not covered by the consultation is that it doesn’t really matter very much. 

This is because the amount of compensation that the Tribunal awards must be aimed at compensating the worker for any financial loss sustained – and in many cases there wont be an identifiable loss at all. This new right is aimed at workers who are regularly working in excess of the hours guaranteed by their contract. A worker who remains in post and continues to work those excess hours will not be suffering any financial loss and will not be entitled to compensation. 

Of course you can construct scenarios where some compensation will be due – but it is likely to be a modest amount whatever limit is imposed. Indeed, this is a key reason why the new right will simply not work. There is a massive imbalance between the complexity of the right to guaranteed hours and the remedy available for its breach. You can’t have the most complex right on the statute book also be the one with the weakest remedy for its breach. 

Is this actually going to happen?

My theory remains that this will never in fact come into force. The current consultation ends in August this year. Perhaps we will get a response from the Government sometime before Christmas but it may well be later. There may then need to be another consultation to deal with the complex issues that this consultation has missed. Perhaps next we will get a set of draft regulations and a final consultation to go with them. When the regulations are laid before Parliament, the Government has made it clear that it will want to give employers plenty of time to get ready for the changes and there will be guidance published to help them. The Government does not need to abandon the proposal altogether – that would play very badly. But it is easy to see how it can eke out the rest of this Parliament without ever being quite ready to put it into effect. 

After the next election? Well, we may then have a whole different set of problems to worry about.