The Workers (Predictable Terms and Conditions) Act 2023 has received royal assent. It will give workers the right to request a more predictable working pattern and employers will be under a duty to deal with the request in a reasonable manner and may only reject it for one of a list of specified reasons.
Addressing one-sided flexibility
The act seeks to address concerns of "one-sided flexibility" in the relationship between employers and workers who have unpredictability in the way they work (for example, those on zero-hours contracts). These concerns were originally highlighted in the 2017 Taylor Review, and then again in the government’s Good Work Plan published in 2018. The issue identified in both of these reports was that, due to the power imbalance between employers and workers, some workers had no certainty of receiving work, although had to be available to work at short notice, thereby creating this feeling of one-sided flexibility.
Right to request more predictability
Once the new regime comes into force, workers (including agency workers) will be able to request more stable working patterns, in a process similar to that of the flexible working request. Workers can apply to either the employer (or to the hirer, if an agency worker) for a change to their working pattern if:
- There is a lack of predictability in relation to any part of the worker’s work pattern (including number of hours, days of work, times of day),
- The change they are requesting relates to the worker's work pattern, and
- The worker's purpose in applying for the change is to obtain a more predictable work pattern
Agency workers can also make an application to the hirer under whose supervision they are working, to enter into a contract of employment or other worker’s contract directly with the worker.
What does “predictable” mean in practice?
There is no definition of predictability in the legislation, however, we do know that fixed-term contracts of less than one year are deemed to be unpredictable. This means that workers working under this type of short-term contract may request either a longer fixed-term or permanent employment.
How to make a request
Any request for a more predictable work pattern must specify the change they are requesting and the date on which the worker proposes it should become effective. It is likely that workers will be required to have a minimum length of service before making a request of six months, however, this has yet to be confirmed. There will be a limit of two applications in any 12 month period for each worker, and a prohibition on making an application while an earlier application is ongoing.
Dealing with a request
Once an application is received, employers will be obliged to deal with the request reasonably and notify the worker of the outcome within one month. Employers may reject such a request for a number of reasons, being:
- Burden of additional costs
- Detrimental effect on ability to meet customer demand
- Detrimental impact on the recruitment of staff
- Detrimental impact on other aspects of the employer's business
- Insufficiency of work during the periods the worker proposes to work
- Planned structural changes
- Such other grounds as may be specified in regulations
Workers will have the right to complain to the Employment Tribunal if their request is not dealt with in accordance with the new rules, including if the employer fails to deal with a request in a reasonable manner and if an application is rejected based on incorrect facts.
Rejecting a flexible working request also carries a discrimination risk for employers, as workers may be requesting a more predictable working pattern for reasons that are protected under equality legislation.
When does the new regime come into force?
This new right to request a more predictable work pattern is expected to come into force in a year’s time, to give employers time to prepare by putting appropriate policies in place to deal with such requests.
Acas (the Advisory, Conciliation and Arbitration Service) will also be publishing a new code of practice with guidance on how employers should deal with requests. It may be sensible for employers to train managers on how to deal with these new types of requests.
Chelsea Feeney