A New Right to Request Predictable Working
On 18 September 2023 the Workers (Predictable Terms and Conditions) Bill received Royal Assent, becoming an Act of Parliament. It is envisaged that the measures will come in to force in or around September 2024.
The purpose of the new law is to safeguard workers in the gig economy, where shifts are not guaranteed or predictable, and are subject to change at a moment’s notice. The Taylor Review of modern working practices identified this as an area of concern in 2017 and this new legislation has been introduced to address the imbalance of “flexibility” experienced by those engaged on zero hours and casual worker contracts.
The law introduces a new statutory right which allows workers to request a more predictable working pattern.
The legislation will affect:
- workers with uncertain working patterns;
- workers on fixed-term contracts of 12 months or less; and,
- agency workers.
To obtain the new right, workers must be engaged for a set period of time, which will be determined in secondary legislation. The government has previously suggested that the qualifying period will be 26 weeks and their own press release confirmed that this remains their expectation. It’s worth noting that, because the legislation is directed to workers with unpredictable hours, they will not have had to have worked continuously during the 26 weeks.
The legal framework is similar to that for making flexible working requests. The worker’s request must clearly state the change they are applying for and when it should take effect. Agency workers can submit their application either to the temporary work agency or the end user who hired them. The request may concern hours of work, days of work, or length of engagement. Workers can make two statutory applications in a 12 month period (which includes any statutory request for flexible working) and no new applications can be made while an earlier application is proceeding.
Requests must be dealt with in a “reasonable manner” and employers can only reject applications on one of the following six grounds:
- burden of additional cost;
- detrimental effect on ability to meet customer demand;
- detrimental impact on recruitment;
- detrimental impact on other areas of the business;
- insufficiency of work during the proposed periods; and,
- planned structural changes.
The request process will cease if the worker either: (1) resigns or (2) their engagement is terminated for legitimate reasons.
The main distinction between this law and the flexible working regime is that the employer must notify the worker of their decision within one month of the application being made (decisions on flexible working must be made within three months). This includes any appeal period and there is no scope to an agree an extension.
Once an application is accepted, the employer must offer the new terms within two weeks.
Where an employer fails to comply with the legislation, the following remedies will be available to workers:
- an order for the employer to reconsider the request; and,
- compensation up to a specific number of weeks’ pay (to be determined by future regulations; note that for flexible working requests this is currently 8 weeks ).
Workers will also be protected from suffering unfair treatment or punishment as a result of making a request.
It is essential for businesses to get ahead of the curve and to review the basis upon which they engage their workforce.
Businesses which routinely rely on zero-hour or casual workers will need to consider if they are likely to be able to accommodate these requests and give their workers more certainty over their working patterns or whether there are legitimate business reasons as to why this isn’t practicable (e.g. seasonal peaks and covering absences).
If this new legislation affects your business and you would like to discuss these changes with a member of our Employment team, please do not hesitate to get in touch.