The Workers (Predictable Terms and Conditions) Bill introduces a statutory right for workers and agency workers to request predictable terms and conditions of work. It is currently progressing through the Houses of Parliament, so its content may be subject to change.
Some of the detail will follow in regulations, but we can make sensible predictions on what the key aspects of the new right will look like, based on previous government statements. When passed, the legislation will apply to England, Wales and Scotland. The new regime will come into force on a date to be specified in regulations.
Background
Back in 2017, the Taylor Review of Modern Workplaces recommended that the government take steps to ensure that flexibility does not benefit the employer at the unreasonable expense of the worker, and that flexibility is genuinely a mutually beneficial arrangement. It found that many vulnerable workers, lacking statutory protection, often felt that, by expressing legitimate views about their working conditions or making reasonable requests for greater equality and predictability, they risked irritating their employer and being denied future work as a result. The Review also identified that many businesses were unnecessarily relying on zero hours, short-hours or agency contracts, to the detriment of their workers, when such businesses could be more proactive in their scheduling. The Good Work Plan, published the following year, confirmed that the government would introduce a statutory right for all workers to request a more predictable and stable contract after 26 weeks’ service. The government initially indicated that such changes would be introduced in the now defunct Employment Bill.
Some of the Review’s recommendations can now be found in The Workers (Predictable Terms and Conditions) Bill, which outlines a statutory request procedure that is based on the existing flexible working regime.
When is a worker eligible to submit a request?
A worker may request a more predictable working pattern from their employer if there is a “lack of predictability” in their current work pattern, which is likely to apply to casual workers and those on annualised contracts. There will be a minimum service requirement before a worker becomes eligible to make a request; this is expected to be 26 weeks’ continuous service. An agency worker will also be entitled to request a more predictable work pattern from their agency, provided the agency worker has a worker’s or employment contract with that agency during a period to be specified in the regulations; we may predict that this will mirror the 26-week period likely to apply to non-agency workers exercising a similar right.
An agency worker will have another important additional right: to ask the hiring business to engage them directly, under either a worker’s contract or a contract of employment, to do the same or broadly similar work to that which the agency worker presently does for the hiring business. An agency worker may only make such an application if they have worked in the “same role” with the same hirer for at least “12 continuous calendar weeks” during one or more assignments. It does not appear that there is any requirement for a minimum period of continuous service with the agency for the worker to exercise this right.
The bill presumes that any worker engaged for a fixed-term of 12 months or less is subject to a lack of predictability as regards their period of work. Fixed-term and agency workers will therefore be entitled to request a change in the duration of their contract, either to extend the length of the contract or to remove any restriction on its duration (i.e. making it open-ended). Again, this will be subject to the anticipated 26 weeks’ continuous service requirement with the employer (or with the agency, in the case of an agency worker).
What are the employer’s obligations?
An employer (including a temporary work agency but also a hiring business, as the case may be) must deal with an application for a predictable work pattern “in a reasonable manner” and must notify the worker of their decision within one month. An employer may only reject an application for a reason on a list of specified grounds, which largely mirror the grounds for refusing a flexible working request (e.g. that the requested change would have a detrimental impact on the ability to meet customer demand or there is insufficiency of work during the periods which the worker proposes).
A business can be liable for procedural failings, including a failure to deal with an application in a reasonable manner, or rejecting an application based on incorrect facts. A tribunal can order the employer to reconsider an application or make an award of compensation up to a likely maximum of eight weeks’ pay, subject to the statutory cap (currently £571 per week).
Limit on number of requests
An individual will be permitted to make a maximum of two statutory applications in any 12-month period under either the new statutory procedure for requesting a more predictable work pattern or under the existing flexible working procedure or both. For example, they will be permitted to make two requests for a more predictable work pattern or two requests under the flexible working regime; alternatively, if a qualifying employee has made a flexible working request, they are only permitted to make one request for a more predictable work pattern within the same 12-month period (and vice versa). (The Employment Relations (Flexible Working) Bill proposes to extend the existing right to submit one flexible working request in a 12-month period to two requests.)
Greater protection from detriment and dismissal
The bill gives employees protection from unfair dismissal and both employees and workers protection from being subjected to a detriment where they have made or propose to make an application for a more predictable work pattern. In both cases, there is no qualifying service requirement; any dismissal for this reason will be considered an automatically unfair reason.
Discrimination risk
Even when a business complies with the statutory regime for requesting a more predictable work pattern, it should remain alive to the risk of discrimination claims, which may require the business to consider a request from an ineligible worker or to go further to accommodate a request. For example, where a request is made for childcare reasons, the applicant may have a claim of indirect sex discrimination where the request is not granted, even if the employer can cite one of the statutory grounds for refusal. Similarly, requests may be made for religious reasons (for example, a request for more predictability around festival dates and fasting requirements) or because the worker is disabled.
Andy Williams
Sarah Taylor