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Workers are to be given the legal right to request a predictable working pattern, but not until 2024.

Background

The issue of one-sided flexibility (where the employer has the whip hand as regards working hours and the worker has none, e.g. zero-hours contracts) was first addressed by Matthew Taylor in his 2017 wide-ranging review of employment law. There he suggested that there should be a higher rate of the National Minimum Wage for workers whose hours aren’t guaranteed by the employer, i.e. the employer pays for benefiting from its desired flexibility. This idea didn’t find favour with the government. However, in 2019 it published a consultation on one-sided flexibility which focused on different proposals from the Low Pay Commission. Following this everything went rather quiet. It was thought that we might see proposals in the hoped-for Employment Bill – but this never materialised. Instead, the government’s approach has been to support various Private Members’ Bills which address some of the issues covered by the Taylor Report. Such Bills rarely reach the statute book – unless they receive government support and the necessary Parliamentary time. On 3 February 2023, the Department for Business, Energy & Industrial Strategy announced that it was supporting the Workers (Predictable Terms and Conditions) Bill, a Private Members’ Bill sponsored by a Conservative MP. The Bill received Royal Assent on 19 September 2023 to become the Workers (Predictable Terms and Conditions) Act 2023.

Proposals

In essence, the Act provides that if a worker’s (and this includes agency workers) existing working pattern lacks certainty in terms of the hours they work, the times they work or if it is a fixed-term contract for less than 12 months, they will be able to make a formal request to change their working pattern to make it more predictable. There will be a qualification period to benefit from this new right – 26 weeks (but workers will not have to have worked continuously during that period). Employers will be able to refuse such requests on specified grounds and workers will be limited to two such requests per year. The Act enables the Secretary of State to provide further details via regulations. It's likely the Act's provisions and secondary legislation expanding on them will come into force about one year after Royal Assent.

ACAS is consulting on a statutory code of practice which runs until 17 January 2024.

In more detail, the changes will be made by amending the Employment Rights Act 1996 by inserting new sections 80IA-80IN in the Chapter dealing with flexible working (to be retitled ‘Rights to request changes to terms and conditions etc.’).

An application for a more predictable working pattern must specify the change applied for and date on which it is proposed it should take effect (the precise form of such applications to be specified in regulations). Employers must deal with the request in a reasonable manner, notify the worker of their decision within one month, and may only refuse a request on one of the following grounds:

• the burden of additional costs
• a detrimental effect on ability to meet customer demand
• a detrimental impact on the recruitment of staff
• a detrimental impact on other aspects of the employer’s business
• an insufficiency of work during the periods the worker proposes to work
• planned structural changes, and
• such other grounds as the Secretary of State may specify

Agency workers

An agency worker may apply to a temporary work agency with which they have a contract to perform work or services to request a more predictable working pattern. An agency worker may also apply to the hirer under whose supervision and direction they are working for either a contract of employment, or other worker’s contract, which is more predictable than their current working pattern.

In relation to an application to a temporary work agency, the worker must have had a contract with the agency at some point in the month immediately before a period which will be prescribed in regulations. In relation to an application to a hirer, the worker must have worked in the same role with the same hirer continuously for 12 weeks within a period which will be prescribed in regulations.

Workers will be protected from suffering a detriment for having made such applications and tribunals will have the power to order an employer to reconsider an application or award compensation (the amount of which will be set by the Secretary of State).