The Workers (Predictable Terms and Conditions) Act 2023* (“the Act”) recently received Royal Assent and is expected to come into force in around September 2024. The Act is aimed at workers on zero-hours contracts and other atypical working patterns. The Act will provide workers who work flexible hours with the right to request a predictable working pattern provided the following criteria is met by the worker:
- They must have been in employment/service for at least 26 weeks (note: the exact length of service is to be confirmed but is expected to be 26 weeks);
- There is a lack of predictability regarding any part of their working pattern, for example if they are on a zero-hours contract and do not have a guaranteed number of hours;
- The request relates to a change in their work pattern, such as the number of hours worked, the days of the week worked, the times worked, and the length of the contract;
- The purpose of the request is applying to achieve a more predictable work pattern;
- The worker has made no more than two applications/requests in the last year.
Whilst aimed at zero-hour contracts and other atypical work, the Act may apply where a contract specifies core hours but states they can be varied, or may even apply to the common requirement of working such hours as are required to fulfill the role. Fixed term contracts of up to and including 12 months are presumed to lack predictability.
Flexible Working Application
If a worker makes a flexible working application under the Employment Relations (Flexible Working) Act 2023 (see our recent article** on this legislation) which would have the same effect in giving a more predictable working pattern, this counts towards the two applications they are permitted to make within the year.
It should be noted that the Act does not provide a right to have hours changed, just a right to make a request. The employer/hirer/agency will be able to reject the worker’s application on statutory grounds, including the burden of additional costs, detrimental impact on the recruitment of staff or other aspects of the employer’s business, planned structural changes, or there being insufficient work during the periods the worker has asked to work.
There are different processes which must be followed depending on whether the request is made by an employee/worker to their employer, or by an agency worker to their agency/hirer.
Employers must also be careful to consider any applicable protected characteristics to avoid falling foul of the law relating to indirect discrimination. For example, where a female makes a request due to caring responsibilities, or where the request is made to help accommodate a disability. Employers should be mindful of the reason for the request for a more predictable working pattern.
Bringing a Claim
A worker may bring a claim if the correct procedure is not followed when a request is made, and/or a claim if they suffer a detriment relating to the request, and/or a claim for unfair dismissal if they are dismissed because of their request.
Acas have since published a draft Code of Practice*** on the Act which will help employers to implement new procedures to ensure they are compliant. The draft Code sets out further good practice principles including:
- allowing workers to be accompanied at meetings to discuss a request;
- that organisations should set out any additional information which is reasonable to help explain their decision; and
- that organisations should allow an appeal where a request has been rejected.
It is important that businesses prepare for the changes by reviewing their policies to ensure they are compliant. Employers must be fully aware of the ever-changing and evolving landscape in relation to the law and their workers’ rights.
Whether you are a business/employer needing to update your policies, or a worker/employee wishing to further understand your rights, our team are happy to advise in relation to these changes and other general employment law matters. Please do not hesitate to contact us for further assistance.
* httpss://www.legislation.gov.uk/ukpga/2023/46/enacted
** httpss://www.tayloremmet.co.uk/blogs/upcoming-changes-to-flexible-working/
*** Code of Practice on handling requests for a predictable working pattern (draft) | Acas