There has been much talk of flexibility in the workplace as employers continue to adapt to changes in working patterns arising from the pandemic and prepare to deal with amendments to flexible working requests set out in the Employment Relations (Flexible Working) Act 2023, due to come into effect in spring 2024.
Whilst for many employers and employees there is a reciprocity in the benefits of flexible working patterns, there are some groups of workers for whom the flexibility may be one-sided. The concerns of “one-sided flexibility” were raised in the Good Work Plan and addressed by the Low Pay Commission, who set out their proposals in response to these concerns.
Many agency workers, short-term/fixed-term workers and workers on zero-hours contracts experience one-sided flexibility and uncertainty in their working patterns. On 18 September 2023, the Workers (Predictable Terms and Conditions) Act 2023 was passed to address the issue of one-sided flexibility and seeks to provide these groups of workers greater certainty and predictability in respect of their working patterns.
The effect of this new law is to provide workers who may lack predictability regarding their working patterns a statutory right to request a more predictable working pattern. “Predictability” is not clearly defined in the act, but will cover those workers who lack any certainty in respect of the hours, days of the week (and times on those days) and the period of time for which they work.
The new legislation does not go as far as many had hoped. Whilst there is a right to request a more predictable working pattern, it is simply that – a right for a worker to make a request, and not an absolute right to an automatic change of working patterns. Further, there is no right to reasonable notice of work schedules nor any entitlement to compensation for cancellation of shifts at short notice, both of which had been proposed by the Low Pay Commission as matters to be addressed.
Workers (Predictable Terms and Conditions) Act 2023
In brief, the act will introduce the following changes:
- Workers will have the right to request a more predictable working pattern where:
- There is a lack of predictability regarding any part of the working pattern ‒ to include hours, days, times and days of work and the length of contract;
- The change relates to their working pattern; and
- The purpose for the request is to obtain a more predictable working pattern.
2. Workers can make a maximum of two applications in a 12-month period. The application must:
- Be in writing;
- State that it is a predictable working pattern application; and
- Specify the change applied for and the date on which the proposed change should take effect.
3. Employers should:
- Deal with the request in a reasonable manner; and
- Respond within one month from the date of the request.
The process for requesting a more predictable working pattern will be similar to that set out in the Employment Relations (Flexible Working) Act 2023 and there may be some overlap between the two new acts, such as where workers on variable hours contracts who are seeking to amend their working patterns may also have a right to a flexible working request.
Process
The right to request a more predictable working pattern is not a Day 1 right. At present, there is no specified minimum length of service, but it is expected that this will be 26 weeks’ service (note that this is not likely to be 26 weeks of continuous service given the aim is to support those with unpredictable contracts).
Similar to flexible working requests, the employer can refuse a predictable working pattern request on one of six statutory grounds. These six grounds are as follows:
- Burden of additional costs;
- Detrimental effect on ability to meet customer demand;
- Detrimental impact on recruitment staff;
- Detrimental impact on other aspects of the employer’s business;
- Insufficiency of work during the periods the worker proposes to work; and
- Planned structural changes.
There may be additional grounds for refusal such as in the event the worker stops working for the employer after making the request or in the event that the contract has been terminated ‒ subject to a fair reason and fair procedure.
Unlike a flexible working request, the employer will be required to notify the worker of their decision within one month of the date the worker made their request. There is no ability to agree on an extension of time and the one-month period will also include time taken to consider any appeal offered.
There are currently no timelines set out for when employers have to effect a new working pattern once this has been agreed upon with a worker who remains employed by them. Where a contract has ended and a request for a predictable working pattern has been agreed to, then a new contract reflecting the agreed changes must be offered within two weeks.
Failure to Comply
We are awaiting confirmation on the compensation payable for failure to comply with the act, but this is likely to be limited to eight weeks’ pay (subject to the statutory cap). There will also be further protections for employees against automatic unfair dismissal and protection for employees and workers from being subject to a detriment for making a request.
Next Steps for Employers
There is no date for implementation of the new legislation but the government has advised that they do not anticipate the measures in the new act to come into force until September 2024 “to give employers time to prepare for the changes.”
In the interim, employers would be advised to consider their use of agency workers/short-term/fixed-term contracts/zero hours contracts and prepare procedures for dealing with requests for more predictable working patterns from these workers, particularly given the required short response deadlines.
Acas Code of Practice
The government asked Acas to prepare a new statutory Code of Practice to sit alongside the Workers (Predictable Terms and Conditions) Act 2023 “to help workers and businesses understand the law and to provide guidance on how requests should be made and considered.”
In response to the government request Acas launched a public consultation on a draft Code of Practice on 25 October 2023. Acas will “welcome contributions from all interested individuals and organisations” who have until 11:59 p.m. on 17 January 2024, to respond.
The draft code sets out guidance on the rights and responsibilities under the act and recommendations for best practice for organisations which includes:
- Approaching requests with an open mind;
- Clearly explaining decisions made regarding any rejection of a request;
- Offering a right of appeal where a request has been rejected; and
- Allowing workers to be accompanied at any meeting to discuss a predictable working pattern request.
The Acas Code of Practice will not be legally binding but employment tribunals and courts will take the Code of Practice into account when considering relevant cases.