This response is submitted by the Local Government Association (LGA) on behalf of local authorities, fire authorities and maintained schools. The LGA is a cross-party organisation that is the national voice of local government. We work with councils and central government to support, promote and improve local government. The LGA covers every part of England and Wales and includes county and district councils, metropolitan and unitary councils, London boroughs, Welsh unitary councils (via the Welsh LGA), as well as fire and national park authorities. The Workforce Team of the LGA offers advice on employment issues and represents local government employer interests to central government, government agencies, trade unions and other interested parties.
The LGA manages sectoral collective bargaining in local government and national collective bargaining arrangements for fire, education and related sectors in total covering around two million employees. Elected councillors (and other employer organisations where appropriate) and nationally recognised trade unions work together in a positive way to reach collective agreements on key employment issues such as pay, and other terms and conditions.
In responding to this consultation, we have sought local authorities’ views, and they are reflected in this response. Please note also that we are currently assessing the full level of local authorities’ use of agency workers on zero hours type arrangements, and as this becomes known we may have further points to make on the issues set out in this consultation. However, in the meantime, one concern we have with the existing zero hours provisions in the Employment Rights Bill is their potential impact on the use of on-call firefighters in fire authorities. Those firefighters work on the basis that they are paid a basic annual retainer to provide a certain level of hours availability to work, but apart from regular training sessions and similar, they will then only be called upon to work at very short notice to deal with emergencies. Therefore, work is unpredictable, making it very difficult to see how guaranteed hours could be provided, at anything other than very short notice. We are of the view therefore that the “excluded workers” exemptions provision in the Employment Rights Bill is an important feature, and that on-call firefighters and similar workers should be excluded from the Bill’s zero hours worker requirements.
Response to key consultation questions
Q5: Do you think the guaranteed hours should be offered by the employment agency (option 1) or the end hirer (option 2)?
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option 1, guaranteed hours should be offered by the employment agency X
Please explain your answer
All of the authorities that responded to us are of the view that the guaranteed hours should be offered by employment agency. While it is recognised that in some cases the hirer may be better placed to forecast and manage the work that will be available, the experience of authorities is that it will be more common that agency workers will be working across a number of hirers. Therefore, the agency will be better placed to be able to offer guaranteed hours, which properly reflect the agency workers overall working arrangements.
Further, should a decision be made for the guaranteed hours to be offered by the end hirer, this will then change the relationship between the parties, and may be detrimental for the worker as they may not be interested in the terms of the end hirer.
Q6: Should end hirers be required to pay a transfer fee or use an extended hire period if they are required to offer guaranteed hours to an agency worker?
- no X
Please explain your answer
This question is based on an assumption that the hirer might, in the circumstances described, effectively become required to be the employer of the worker, and we should be grateful for a full explanation of the reason for this view.
In any event, authorities are of the view that hirers should not be required to pay any transfer fee or to use an extended hire period. Local authorities’ need to use agency workers is frequently due to exceptional circumstances, in order to maintain the provision of statutory frontline services. If a requirement is placed on authorities to enter into extended periods of hire or to pay transfer fees, this will place considerable additional financial burdens on already financially stretched services.
Q8: Do you agree that the responsibility for providing an agency worker with reasonable notice of shifts should rest with both the employment agency and the hirer, so that where a tribunal finds that unreasonable notice was given, it will apportion liability according to the extent that the agency and the hirer are each responsible for the unreasonable notice?
- yes X
Please explain your answer
Yes, that is a reasonable and fair approach, reflecting the reality of how agency worker arrangements operate in practice.
Q9: Do you think that legislation should prescribe how the end hirer should notify the agency that they have a shift available and of changes to these and when notification should be deemed to be received?
- no X
Please explain your answer
No. Such matters are better dealt with in guidance, as it would be a less prescriptive approach than legislation. Guidance would also be able to be more wide ranging in terms of providing examples of what might be reasonable across a number of circumstances.
Q11: Do you agree that the agency should be responsible for paying any short notice cancellation or curtailment payments to an agency worker?
- yes X
Please explain your answer
Local authorities are of the view that agencies should be responsible for making the payments, the agency being the party who will be paying wages to the agency worker and so the one with payroll arrangements in place for the worker. If the hirer had to make the payments, that would necessitate new payment arrangements being set up, which would create administrative burdens.
Q12: Do you think that the agency should be able to recoup this cost from the end hirer if/to the extent that the end hirer was responsible for the short notice cancellation or curtailment?
- yes X
Please explain your answer
Of the authorities that provided us with a response to this question, the majority view is that it would be reasonable for the agency to be able to recoup the cost where the hirer was responsible for the short notice cancellation or curtailment.
Q13: If you think that the agency should be able to recoup this cost from the end hirer, do you think the government should legislate to ensure that the agency can recoup the costs?
- no X
Please explain your answer
No, this would best be dealt with through contractual arrangements, which could provide a more flexible approach, reflecting the overall working arrangements between the hirer and the agency.
Q14: Do you think that it should be possible to override legislative provisions allowing agencies to recoup cancellation or curtailment costs through contracts signed after implementation (or that are clearly entered into in contemplation of the commencement of the legislative provisions)?
- yes X
Please explain your answer
See our response to question 13, a contractual approach is preferred.
Local Government Association
[email protected]
2 December 2024