Image © VERTEX SPACE / Adobe Stock
Millions of UK workers may soon experience a substantial improvement in the reliability and consistency of their work schedules following new legislation granting them the right to request a more predictable working pattern.
The Workers (Predictable Terms and Conditions) Act 2023, which received Royal Assent in September, aims to empower and encourage individuals engaged in non-standard employment arrangements, such as those on zero-hours or temporary contracts, to engage in discussions with their employers regarding their work schedules, without fearing that this may result in negative consequences.
This new Government-backed law is the latest in a recent wave of legislation bolstering workers’ rights. It follows a series of enhanced protections for parents and unpaid carers back in May and, most recently, new legislation granting workers the right to request flexible working arrangements from day one.
The Workers (Predictable Terms and Conditions) Act 2023 has been in the works for a while, originally stemming from the Government’s Good Work Plan. The plan, which was published in December 2018 and came into effect in April 2020, proposed several changes to the employment landscape, including a right for workers to request a more predictable and stable contract after 26 weeks’ service.
This particular proposal emerged in response to the evolving nature of work patterns associated with the UK’s burgeoning “gig economy”, which has faced substantial criticism in recent years. One of the major criticisms of “gig work”, according to the Government, is its “one-sided flexibility”, where “workers are on standby for work which never comes”.
These precarious work arrangements and the inconsistent income makes it difficult for workers to plan ahead or achieve financial stability. Accordingly, the aim of the legislation was to level the playing field by giving workers in non-standard employment arrangements a degree of job security and income predictability similar to that enjoyed by those in more traditional work arrangements.
The right to request a more predictable working schedule will apply to workers whose existing working patterns lack certainty in regard to the hours or times they work, such as retail and hospitality employees with irregular shifts, or on-call health care workers; workers on fixed-term contracts of 12 months or less (who are able to request a longer fixed-term or the removal of any provisions relating to fixed-term), such as seasonal workers and supply teachers; and agency workers (who can make their request either to the agency or the hirer provided they meet certain qualifying conditions).
If the original proposal outlined in the Good Work Plan is adopted, the likely qualifying period for these rights will be 26 weeks’ service, although, given the nature of gig work, those weeks will not need to be continuous.
Making a predictable working request
When submitting a request for a more predictable work arrangement, the worker should clearly outline the desired change, which may pertain to working hours, working days or the duration of employment. They should also indicate the proposed start date for this new arrangement. Workers can submit a maximum of two applications in any 12-month period.
On receiving a request, employers will be required to deal with it in a reasonable manner and notify the worker of their decision within one month. The procedure will be similar to that of flexible working requests, although employers will have just a month to respond rather than two.
The ability to reject a request will also function in a similar way to the new flexible working laws, in that employers will be able to do so based on one of six statutory grounds. These are the burden of additional costs; the ability to meet customer demand; the impact on recruitment; the impact on other areas of the business; insufficiency of work during the proposed periods; and planned structural changes.
If a request is approved, employers must present the new terms to the worker within two weeks of granting the request.
Importantly, employers are prohibited from making detrimental changes to other contractual terms simultaneously while implementing the approved request for predictability.
Effect on employers
The procedure introduced by the act will be familiar to employers, as it closely mirrors the process for a flexible working request.
Indeed, the reasons for rejecting requests for a more predictable working pattern are almost exactly the same as those by which a flexible working request can be refused.
For employees, the problem with the flexible working regime is that the penalty for an employer who fails to deal with a request is virtually non-existent. Flexible working rights do, however, get their teeth from discrimination legislation as, in the main, requests for flexible working come from female employees. An employer who gives short shrift to a request could well face a sex discrimination claim.
However, the maximum penalty for failing to deal with a request for a predictable working pattern is eight weeks’ pay. For most employers, this probably is not too significant a penalty. In addition, it is unclear at this stage whether most employees who work unpredictable hours are female. If this is not the case, then the danger of a sex discrimination claim may not arise for employers.
With all of this in mind, declining requests for predictable working in line with the procedure may well be far less risky, though employers will of course want to be mindful of the reputational impact of doing so. Following best practice and making sure they can review requests appropriately, fairly and with good data to back up decisions will be important.
The other issue is that the legislation does not define what predictable means. Many contracts contain an element of unpredictability – for example, a clause to the effect of “your normal contractual hours of work are 37.5 hours a week to be worked Monday to Friday 9am to 5:30pm. We reserve the right to vary those hours in accordance with the needs of the business”.
That too is “unpredictable”, but it is unlikely that workers with contracts such as this were intended to be caught by the legislation.
How employers can prepare
The implementation date for these new measures has not yet been confirmed, but it is expected that the act will come into effect in September 2024.
The best advice for employers is to review all current policies and consider what changes are needed to bring them into line with the new legislation.
Similarly, they should evaluate the sustainability and practicality of existing working patterns. This means, in particular, implementing systems to track demand and assess whether the current patterns adequately address it.
This information will be crucial when it comes to evaluating future predictable working pattern requests in an equitable and efficient way.
Next, employers should communicate the new rights that employees have to their staff ahead of them becoming law.
Finally, it would help to keep an eye out for the Acas Code of Practice, which will provide guidance on how to handle predictable working requests.
The change is not earth shattering, but rather an attempt to even up the landscape for some workers in relation to others in more predictable working patterns.
Taking time to understand the legislation, as in other spheres, could pay dividends.