The right to request flexible working has become firmly established in the workplace as a means by which employees may request more flexible working patterns in relation to when and where they carry out their work.
However, on the flip side of that there has up until now been no statutory right for casual workers to request a more predictable working pattern.
The Workers (Predictable Terms and Conditions) Act 2023 (the Act) addresses this, creating a new statutory right for workers and agency workers to request a predictable working pattern. The Act which has now received Royal Assent will come into force in September 2024.
Background
The problem of ‘one-sided flexibility’ where a worker has no guarantee of work but is expected to be available at very short notice was highlighted as far back as 2017 on the publication of the Taylor Review of Modern Workplaces.
The vast majority of the recommendations proposed in that Review were accepted and in 2019 a consultation was launched on the measures to address one-sided flexibility which included an intention to introduce a right to request a more predictable work pattern.
Four years later, following a further general election and the pandemic, the legislation has now been passed that will give workers and agency workers the right to request more predictable terms and conditions of work under a process that is extremely similar to that which applies for flexible work applications.
Importantly, as with the flexible working requests, there is a right to refuse requests for statutory reasons which means it is not a right to have predictable terms but only a right to request them.
In certain work sectors which are seasonal or subject to sudden variations in demand the use of casual workers will remain necessary and unpredictable working arrangements are likely to continue.
There will, however, be a need for all employers to be ready to deal with requests in a reasonable manner.
When can a request be made?
A request can only be made if there is a lack of predictability in relation to the work and work pattern. This may clearly apply where there is a ‘zero hours’ work contract in place. It may also be possible to make an application where the hours or days vary, although there is only a presumption of unpredictability in the Act if there is a fixed-term contract of less than 12 months duration.
The worker will need to have been working for the employer for a minimum period of time before making the request. As is currently the case with flexible work requests, the minimum period is 26 weeks.
There will also be a maximum of two requests that can be made in any 12-month period.
There will be a separate right for agency workers to apply for a predictable work pattern to the Temporary Work Agency or in some circumstances directly to the hirer. The hirer may be asked to enter into a direct contract only where the worker has been hired by them in the ‘same role’ for at least 12 continuous calendar weeks.
Whoever the application is made to will have to deal with it in a reasonable manner.
Dealing with requests reasonably
ACAS is producing a new Code of Practice that will provide clear guidance on making and handling requests. This is likely to encourage constructive discussions around working arrangements that suit both employer and worker. The draft Code will be available for public consultation in the coming weeks.
In any event, the worker must be notified of the decision within one month beginning with the date on which the application is made.
The request may be rejected on one or more of the following grounds:
- burden of additional costs;
- detrimental effect on ability to meet customer demand;
- detrimental impact on the recruitment of 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.
Penalties
The worker or employee will have specific protection against detriment or dismissal on the grounds that they have made the request.
Failing to deal with the request as required will also give grounds for a claim to be made and an Employment Tribunal will have the power to award compensation that is just and equitable subject to a maximum number of weeks’ pay. The maximum number has not yet been finalised but under the Flexible Work provisions this is set at eight weeks’ capped pay and it is likely that this will be incorporated into this legislation too.