In September of this year, the Workers (Predictable Terms and Conditions) Act 2023 received Royal Assent. The Act introduces a right for workers, including agency workers, to request that their working pattern be made more predictable, and is expected to come into force in September 2024. Acas is now drafting a Code of Practice on handling such requests which, while not legally binding, will be taken into account by courts and tribunals. But how much of a change does the Act herald, and what should employers do to prepare?
The new law
In the legislation, ‘work pattern’ is defined to include the number of hours, days of the week and the timing of work on those days, as well as the overall period a worker is contracted for. Employees can apply for a change in their work pattern for the purpose of making it more predictable, although there is a qualifying period, which requires the worker to have been employed by their employer for a one-month period in the 26 weeks leading up to the request.
Employers must be reasonable in considering predictable working requests, but can reject applications on a number of specified grounds, which include:
While zero-hours and other flexible contracts can benefit both employers and workers who need flexibility, they can also facilitate worker vulnerability. The government state that a key aim of this legislation is to end 'one-sided flexibility' in which workers 'put their lives on hold to make themselves available for shifts that may never actually come'. A positive of this legislation, along with its sister legislation regarding flexible working requests, is that it has the potential to provide workers the opportunity to increase their autonomy and control over their working lives. This has been shown to be an important, if not the most important, contributor to job satisfaction.
Although the Act is a step in the right direction, however, it is questionable how effective it will be in achieving its goals. For one, this is merely a right to request, rather than a right to a predictable working pattern in itself. The BEIS recommended that after 26 weeks there should be a right to secure a contract that reflects the worker's typical working hours, but this was not put into the final legislation. The Act also missed the opportunity to make predictable working, or a request for it, a day one right. This would have been of crucial importance to those looking to start a new job but needing the guarantee of regular hours around which to structure their days or weeks.
The TUC have found that, in the context of flexible working, a ‘right to request’ has been ineffective in increasing flexibility in the workforce. As noted above, there are several business-need exemptions upon which employers can rely in denying employee requests. Given that zero-hours contracts are invariably used to lower business costs and meet fluctuating customer demand, it is unclear whether many employers will grant predictable work requests, and therefore whether many employees will benefit.
The Act also does not address the thorniest problems with precarious working arrangements. One of the biggest concerns of those in zero-hours contracts is that of in-work underemployment: in other words, they aren't getting enough work. This is despite often being expected to be available around the clock and at short notice. Even if a business were to grant these workers’ requests, how many workers would be interested in limiting their potential hours when this could leave them worse off in terms of earning opportunities?
Additionally, the BEIS made other recommendations which would have gone some way towards addressing the problem of precarious work, including a right to four weeks’ notice of working schedules and a right to compensation for cancelled shifts, but these recommendations were not brought into force. Considering the scope for change, it is disappointing that more hasn’t been done to mitigate the effects of such a prevalent driver of vulnerability in employment.
Employees with unpredictable working hours should take note of the new legislation and consider whether, once it comes into force, making a request could help them better manage their work-life balance.
Employers should start considering how they might go about accommodating any predictable working requests and determine whether their current practices can be adapted to better support employees.
Employers should also take care once the law comes into force. As with all discretionary decision-making, there may be the potential for discrimination if predictable working requests are approved for some but not others. It is therefore important, and will likely be found to be good practice under the Acas Code, that employers provide full and coherent reasoning for any predictable working decision they make, and that a fair and effective procedure is followed when making those decisions.
This article is not intended as legal advice. If you want to understand more about predictable or flexible working arrangements, either as an employer or as an employee, reach out to Hina Belitz and her team on the details below. We have been at the cutting edge of employment law for over 20 years and will continue to do so as the law develops.
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Partners Employment Lawyers is not a firm of solicitors. Members of Partners Employment Lawyers are consultants at Excello Law Limited and legal services are provided by Excello Law Limited which is authorised and regulated by the Solicitors Regulation Authority under SRA number 652733.