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Employment (Miscellaneous Provisions) Act 2018 – update on key changes – part 2

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By DAC Beachcroft


Published 14 November 2019


In the second article in our series of on this legislation, (our first article is available here) we highlight some common queries regarding banded hours working arrangements.

Are all employees working on variable hour contracts entitled to “banding”?

No. The Act applies to employees whose statement or contract of employment does not reflect the number of weekly hours worked over a 12 month period. If an employee's statement accurately reflects the hours worked, then banding does not arise.

Do employees have to wait for 12 months from 4 March 2019 before applying to be placed into a banded hour working arrangement?

No, employees may rely on service prior to 4 March 2019 to calculate their hours for the 12 month reference period.

Do all variable hour employees have to apply for banded hour working arrangements?

No, there is no obligation on employees to apply for banding. We have found that it suits certain employees to maximise their flexibility.

Can we refuse a banded hour working arrangement?

Yes, in specific circumstances. These include lack of evidence to support the application, certain temporary considerations, to name but a few.

Do the new entitlements affect how we manage attendance issues?

No. The employer should proactively address this in line with best practice and advice.

Can an employee choose any particular band?

Employees cannot pick and choose bands. An application under the Act triggers a factual enquiry into the employee’s average hours over the previous 12 months. This is not to say that the parties cannot agree to variations in hours in the normal course.

What happens if I am unable to provide hours to an employee on a banded hour working arrangement in a week?

Specific advice should be sought. For example, the Act has not outlined how issues such as lay off or short time will affect those on banded hour contracts. In addition, the Act lacks specificity on how the averaging provision is to be operated once employees have been placed in a band.