The long-promised consultation on guaranteed hours has arrived, shedding light on some of the unanswered questions in the Employment Rights Act 2025. But while it gives some indication of the government’s current preferences, it also confirms just how administratively complex and legally awkward this new regime may be.
Promised in early 2026, the hotly anticipated consultation on reforming zero hours has finally landed. This covers the provisions relating to the obligation to offer guaranteed hours and the duty to provide reasonable notice of shifts and shift changes. This article focuses on guaranteed hours and we unpick the proposals relating to shift changes here.
The duty to offer guaranteed hours is one of the most complicated parts of the Employment Rights Act 2025. In short, the Act requires employers to make an offer of guaranteed hours to qualifying workers based on hours regularly worked over a defined reference period. It will apply to both zero hours workers and those who have a low number of minimum guaranteed hours, including agency workers.
For employers, working out what the new duty will mean in practice and how to prepare for it has been difficult, not least because so many of the key details are missing from the legislation and remain to be determined in regulations. This consultation addresses many, albeit not all, of these outstanding points. But with additional layers of complexity and further individualised calculations, it’s all starting to look extremely unwieldy.
We consider the key points that the government is consulting on, how this could water down the impact of the regime, and what is missing from the consultation.
What is the government proposing?
The main points under consultation are set out in the table below. For many of these, the range being considered is very broad. This means that the impact of this legislation is still very difficult to predict.
Take, for example, the low hours definition. This is a key threshold in this part of the Act and will largely determine its impact. Options under consultation range from 8 to 48 hours per week. Given the upper limit mirrors the statutory maximum average working week, this is hardly “low hours”. Even within the government’s own preference of 8-20 hours, this could bring those who do weekend shifts into scope and have a significant impact for employers in sectors such as retail and hospitality.
| Issue | Options consulted on | The practical impact |
Low hours threshold The maximum number of contractual hours a worker can have and still be in scope of the regime. | Between 8 and 48 hours per week (in 4-hour increments) Government preference within the range of 8 to 20 hours per week. | Determines the proportion of the workforce in scope. A lower threshold narrows the pool; a higher one risks capturing workers with relatively stable arrangements. |
Initial reference period The initial period over which hours are tracked to determine whether a worker qualifies for a guaranteed hours offer. | 12 weeks, 26 weeks or 52 weeks. Government preference is 12 weeks. | This dictates how soon the duty to offer will arise. A 12-week period means the obligation could be triggered within three months of engagement. |
Subsequent reference periods Subsequent tracking periods, each triggering a fresh assessment of whether a guaranteed hours offer is due. | 12 weeks, 26 weeks or 52 weeks. No express government preference. The government is also considering whether there should be a gap between reference periods. | This determines the frequency of the calculation and offer cycle. Longer periods could significantly reduce the administrative burden for employers, whereas rolling 12 week periods would require continuous monitoring and recalculation. |
Regularity requirements — structure The test a worker must pass to show they worked "regularly" during the reference period. | Option A: Weekly distribution only. The worker worked in a specified minimum number of calendar weeks (proposed between 6 and 12 out of a 12-week period; need not be consecutive). Option B: Weekly distribution and total hours. The worker must meet the weekly distribution requirement and exceed their contracted hours by a specified minimum total (proposed from fewer than 48 to 96 excess hours across a 12 week reference period). Regularity thresholds would be adjusted pro rata for longer subsequent reference periods. No express government preferences. | This determines the threshold for filtering out workers who perform only occasional additional work. Option A would be more simple to operate, but Option B could prevent low-level voluntary overtime from triggering offers. |
Calculation method How the guaranteed hours offer is calculated based on the hours worked during the reference period. | Option A: Mean. (e.g. 8 hours × 7 weeks + 20 hours × 5 weeks = 13 hours) Option B: Median. (median on the above = 8 hours) No express government preference. | This will directly affect the number of hours that must be guaranteed. A mean average produces higher offers where hours fluctuate; a median favours employers with variable demand patterns. |
Time period for allocating the hours in offer How the guaranteed hours in the offer are packaged e.g., whether the offer specifies hours on a weekly or monthly basis | Weekly, monthly, or employer/hirer discretion. No express government preference. | A monthly allocation allows greater scope to vary week-to-week patterns; a weekly allocation provides workers with more predictability. |
Adjustment margin A small tolerance allowing employers to round the offer up or down to align with shift patterns or correct minor calculation errors. | Option A: Fixed figure (e.g. 2 hours) Option B: percentage (e.g. 10%) Option C: no adjustment margin No express government preference. | Without a margin, employers face potential liability for minor rounding errors. Even a small fixed margin would provide useful operational flexibility when aligning offers with standard shift lengths. |
Seasonal/temporary work Whether an employer can avoid the duty to offer guaranteed hours where the work is genuinely short-term. | The Act provides that the duty does not arise where a limited-term contract is reasonable — i.e. the worker is needed for a specific task or until a particular event. The consultation asks whether a third category of "temporary need" should be defined in regulations to cover other scenarios such as seasonal demand. No express government preference. | A narrow definition of "temporary need" could force employers to make guaranteed hours offers to workers engaged for genuinely short-term seasonal peaks. A broader definition would preserve flexibility for sectors with predictable but time-limited demand. |
Exclusions and exemptions Circumstances in which the duty to offer guaranteed hours does not arise, even if the worker otherwise qualifies. | Consultation asks whether and how the following powers in the Act should be used: (1) power to exclude certain categories of worker altogether (for example, workers who already have another contract above the hours threshold); and (2) power to exempt employers in exceptional circumstances (for example, flooding). The government does not express specific preference but states the power are to be used in limited circumstances. | Clear carve-outs — for example, for genuine voluntary overtime or multi-contract workers — could materially reduce the number of offers required. |
Agency workers
The consultation consistently distinguishes between directly engaged workers and agency workers in parallel. However, in most cases the underlying proposals are substantively the same: the hours threshold options, reference period lengths, regularity requirements and calculation methods are all identical.
Where the frameworks diverge, it’s largely a question of who bears the duty (the employer for directly engaged workers; the hirer - and in some cases the agency - for agency workers) and the additional complexity that flows from the three-way relationship. Agency workers' regularity is assessed against hours worked for a specific hirer rather than across all engagements.
To what extent does the consultation water down the rights?
Throughout the Bill’s passing and in the months since, this package of rights has faced quite considerable criticism from business groups and commentators. It’s notable, therefore, that the consultation includes a number of options which have the potential to water down the impact of this complex new regime:
Subsequent reference periods
Although the government’s preference for an initial reference period of 12 weeks has been clear from the outset, the Act contains very few references to subsequent reference periods. Would this also be 12 weeks? In the absence of any explicit government preference, subsequent reference periods could be significantly longer. This would have real practical impact.
Some had assumed that the right to guaranteed hours would apply consistently for the duration of the contract i.e. it would be triggered at regular intervals and on a rolling basis for as long as the worker qualified. If the 12 weeks cycle were fixed, this would mean the guaranteed hours calculation had to be done up to 4 times a year.
If subsequent reference periods are longer (up to a year under one of the consultation options) and the regulations allow for a gap between reference periods (see below), then it is a very different picture. The right to be offered hours would then be strongly weighted to the early days of the engagement.
A longer subsequent reference period would be welcome news for many employers. Although they would still face highly individualised and complex calculations to determine the hours that must be offered, that task would at least not come around so frequently.
Gaps between reference periods
Another option raised in the consultation is having a gap between the end of one reference period and the beginning of another. During the gap, the worker’s hours would not factor into a future guaranteed hours offer. Combined with longer subsequent reference periods, a gap between reference periods could further ease the burden on employers. Options are not given for potential gaps, but the example given of 26 weeks is substantial.
Regularity requirements
A slightly mysterious threshold requirement in the ERA was that in order to qualify for the right, the “reference period hours satisfy such conditions …. as to number, regularity or otherwise as are specified”. The consultation gives us a better understanding of what the regularity requirements could look like, but with that comes more complexity.
As set out on the table above, the government is consulting on two proposals here:
- Option A: this would require the how worked in the reference period to be distributed across a specified number of weeks.
- Option B: in addition to the weekly distribution requirements, the worker would only qualify for the right if they worked more than a certain number of hours in excess of their contracted hours across the reference period.
For example, if the total hours requirement were set at 96 hours (which is the highest option being consulted on), this would give employers a considerable buffer before triggering the obligation to make a guaranteed hours offer.
Calculating the guaranteed hours offer
It’s clear from the consultation that determining how many hours need to be offered to the worker under a guaranteed hours offer is far from straightforward and how hours are averaged would have significant practical impact.
The example given in the consultation compares a working pattern of 8 hours per week for 7 weeks, followed by 20 hours per week for the remaining 5 weeks. Taking the mean, the guaranteed hours offered would have to be 13 hours per week; the median would be much lower at 8 hours.
The commentary states that the median average could be “more representative of the hours a worker regularly works”. Does that really ring true? In the context of the example given in the consultation, over 40% of the weeks in that reference period are 250% of the median. Nevertheless, this could be a better option for employers as it allows any outlier weeks, where a higher-than-normal number of hours are worked, to be largely discounted. This could reduce those in scope for a guaranteed hours offer, further reducing the burden.
Interaction with reasonable notice of shifts
Although not watering down the guaranteed hours rights itself, the interaction between the guaranteed hours threshold and the separate thresholds for the right to reasonable notice of shifts and short notice cancellation payments means that triggering one right could limit the other.
The consultation document explains that if the minimum hours threshold were set at 16 hours per week for shift changes and the worker accepted a guaranteed hours offer of 18 hours, they may no longer be entitled to reasonable notice of shifts or a cancellation payment under the legislation.
The complexity of the guaranteed hours provisions belies the fact that enforcement may be of limited value. As discussed in our article on shift provisions, this may in fact be the more valuable right in practice and losing this could be a significant but unforeseen consequence for the worker.
What key questions remain unanswered?
Despite the fact that this consultation has been quite a long time coming, it looks unlikely to be the final word on this. There are a number of important points that still need to be addressed:
- Absence for other reasons: The Act includes a provision that allows periods of time during which a worker has not worked for a specified reason to be taken into account when determining if a guaranteed hours offer needs to be made. These would be likely to include sickness absence or family leave, for example. This point is not addressed in the consultation and is specifically flagged as something that will be considered further by the government.
- How guaranteed hours would be scheduled: The consultation says quite a lot about how guaranteed hours should be calculated but much less about the practical mechanics of how those hours would actually be scheduled. The Act implies a mutual obligation for the employer to provide the work and the worker to do it, but the process around this remains unclear. For example, the consultation could have sought views on whether the employer must allocate specific shifts when the offer is made, or whether a rota would need to be published in advance.
Perhaps that is deliberate? More flexibility around this could leave room for models used by platform businesses, where workers retain flexibility to sign up for work as they choose, provided work is available up to the level of the guaranteed hours. But that raises a further question around the impact this would have on employment status. Would a more flexible arrangement, under which the worker retains autonomy over how their hours are allocated, mitigate the risk of them being deemed an employee? Or would accepting the ‘guarantee’ of hours simply be too strong an indicator to the contrary? - Exceptions: The Act gives ministers powers to exclude certain categories of worker from the right altogether, and to exempt employers from the duty to offer guaranteed hours in exceptional circumstances. However, the treatment of this issue is strikingly thin, with no detailed options set out for consideration; aside from brief examples, the consultation simply invites respondents to suggest what the exceptions should be. If this means this issue remains open, perhaps consultation responses could significantly shape the final regulations.
What next?
We set out in our article here a range of preparatory steps employers could consider, including auditing the workforce, tracking seasonal variations and reviewing the use of fixed-term contracts. However, with the consultation not closing until 25 August 2026, and further policy development needed on key points, it remains difficult for employers to fully prepare. The government, meanwhile, still faces a substantial task in turning the framework into a workable regime that is ready for implementation.
The consultation can be viewed here. Lewis Silkin will be responding to this consultation and are keen to hear your views. If you would like to discuss how these proposals could impact your business, please get in touch with your usual Lewis Silkin contact.