The Right to Request Predictable Working Patterns

On 19 September 2023, the Worker (Predictable Terms and Conditions) Act 2023 received Royal Assent. 

The new legislation is part of the Government’s agenda to provide security for the growing atypical workforce and those on uncertain zero hour contracts.  Its’ press release suggests this will lead to a happier workforce, which in turn will increase productivity.  The right was initially recommended by Matthew Taylor in his Review of Modern Workplaces in 2017.  The new law will impact casual and temporary workers undertaking jobs where shifts are changed or where they are not guaranteed or given any predictability over the hours they will be needed. 

What is the entitlement and who is eligible?

Eligible workers who have unpredictable working patterns will have a new “right to request” a more predictable working pattern.  This could be in relation to the number of hours worked, the days and times worked, as well as the period for which they are contracted to work.  Up to two requests a year will be permitted. 

Fixed-term workers whose contracts are for a period of 12 months or less, will be considered to be lacking predictability in terms of the period they are contracted to work for.

Employees and workers will be required to have at least 26 weeks service with their employer before making an application.  Given the nature of the flexible workforce, it is anticipated that this will not need to be a continuous period.

Does the right extend to agency workers?

Separate provisions set out how the new right will operate for agency workers.

They will be able to make a request to the employment business (agency) through which they work if they have a contract with them and after they have been engaged for 26 weeks’ or more.  Agency workers will also have the right to make a request directly to the “hirer” (the end user) under whose direction and supervision they work, to be engaged directly.  This will apply where they have worked in the same role for the hirer for at least 12 continuous weeks.

How should employers deal with requests?

Employers must deal with requests in a “reasonable” manner but they can be refused on one or more of the new statutory grounds.  These are:

1.    additional cost;

2.    ability to meet customer demand;

3.    impact on recruitment;

4.    impact on other areas of the business;

5.    insufficiency of work during the proposed periods; and

6.    planned structural changes.

Additional grounds of objection apply where a worker ceases to be employed during the decision period.

An employer must deal with a request and confirm the outcome in writing within one month of the request. There is currently no scope for employers to be able to agree to extend this period with the employee (as there is with flexible working requests).

The Government is expected to issue regulations to provide more detail on how the right will operate in practice.  ACAS has also announced that it will consult on a new statutory Code of Practice which will provide guidance for employers on how to deal with such requests.

What are the penalties for non-compliance?

Regulations will set out compensation that a worker or employee might receive if their rights under the new laws are breached, which is expected to be a specific number of week's pay, capped at the statutory rate.  

There will also be protections against the worker being dismissed or subjected to a detriment as a result of making a request.

 Employers should also be alive to potential claims of indirect discrimination if requests are not granted.

When the new law take effect?

It is expected that the legislation will come into force within a year, to enable employers, and suppliers and users of agency workers, time to prepare for the changes. 

What should employers do?

It will be important for those employers with atypical and casual workforces to keep a look out for the more detailed regulations and ACAS guidance, and to update their policies and working practices accordingly.  We will keep you posted on further developments.

The impact of the new legislation is yet to be seen.  It will be interesting to see if this will simply be a further administrative burden for employers, or whether it will meet the intended aims of creating better job security and flexibility. 





Posted on 10/05/2023 by Ortolan

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