The Right to Request a Predictable Working Pattern
28th September, 2023
The Workers (Predictable Terms and Conditions) Act 2023 was passed a short while ago, and will create a new right for many casual, agency and zero hours contract workers when it takes effect (which is expected to be in September 2024).
The aim of the legislation is to address the issue where workers can be required to work at short notice but have no guaranteed hours. The Act deals with the main changes but some of the detail is yet to come when the Regulations are published shortly. In addition, ACAS is currently working on draft guidance. The scheme, when it arrives, should seem familiar as it is modelled on the right to request flexible working, and the Regulations will set out how the request should be made and considered.
When can workers request a predictable working pattern
The Act will give a worker the right to ask their employer for a change in their terms and conditions of employment if all of the following circumstances apply:
- There is a lack of predictability in relation to the work that the worker does for the employer, as regards any part of the worker’s ‘work pattern’
- The change relates to the worker’s work pattern
- The worker’s purpose in applying for the change is to get a more predictable work pattern
A ‘work pattern’ is further defined as the number of hours, the days of the week or times of the day worked by a worker, and/or the period a worker is contracted to work. The Regulations may add to this. What amounts to a predictable work pattern is not specified. However, if a worker’s general working pattern can be described in terms of hours, days of the week or weeks or possibly by certain events, it may have enough regularity to be predictable.
Where their pattern can be summed up by ‘as and when required’ then it would clearly lack that predictability. Where a worker’s contract is for a fixed term of 12 months or less then it is presumed that there is a lack of predictability, and an application which would impact on the duration of that contract is assumed to be a request for a more predictable work pattern.
On what grounds can a request be rejected?
As with the right to request flexible working, employers will be given a series of business reasons to reject the application. They would need to deal with the request reasonably and within a ‘decision period’ of one month. The grounds for rejecting a request will include the following (although the Regulations could add to this):
- 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
- Insufficiency of work during the periods the worker proposes to work
- Planned structural changes
If the request is accepted the employer must offer a contract on the new terms within 2 weeks. If it is rejected, the worker may only make one more application within 12 months.
Again, similar to the right to request flexible working, the worker is protected from being subjected to a detriment or dismissed on the grounds that they made a request (which will also be a form of automatically unfair dismissal). Another key issue to be addressed by the Regulations will be who is eligible to make a request. Currently, it is expected to be workers with at least 26 weeks’ continuous service.
There will be special provision for agency workers who may apply to their agency for changes in their contract or to the hirer (the client) for a contract of employment or worker’s contract to achieve the same changes. For healthcare and social care employers, this might have a huge impact on bank staff, casual workers and the use of agency staff. It may potentially lead to a more stable and regular workforce for some employers but workers who only picked up occasional shifts dropping off the rota, and out of the workforce, altogether.
This legislation could represent a significant change to the working arrangements for thousands of workers. For those workers who have already established a fixed, regular or predictable pattern it may have little impact on employers but for the genuinely casual ‘as and when’ worker, it may be significant. The finer detail in the Regulations and the ACAS Guidance will be important to see how much a change this could be.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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