New proposals will give casual workers the right to ask for a predictable work contract

At the beginning of the year, I speculated that the long-promised right for insecure workers to ask to change their contract to reflect the hours they work, had been kicked into the long grass. That prediction was wide of the mark: the government has recently announced that's it is backing a private members bill. This means that these changes are likely to go ahead.

Background

This proposal dates back to the 2017 Taylor Review of Modern Working Practices which found that many workers on zero hours contracts had little control over when they worked and didn't know, from one week to the next, whether they would be offered work. It recommended that the government introduce a right to request a direct contract of employment for agency workers, and for those on zero hours contracts to request a more predictable contract. 

The government agreed to introduce legislation to achieve this and consulted on it in 2018 and included it in its subsequent manifesto.

Regular readers of this blog will know that the government has abandoned its promise to introduce an Employment Bill and is instead, supporting a number of private member's bills to bring about some of the changes included in its 2019 manifesto. 

The Workers (Predictable Terms and Conditions) Bill

The bill will introduce a new statutory right for certain workers to request a predictable work pattern. These will 'sit' within the flexible working provisions in the Employment Rights Act 1996 and contain similar steps to those employees use to request flexible working. 

As currently drafted, the bill will allow:

• Qualifying workers who don't have a predictable work pattern to ask their employers to agree one
• Qualifying agency workers who don't have a predictable work pattern to ask for one from the agency they work for, or the organisation they are assigned to (the hirer)

In both cases, the worker can ask to fix the minimum number of hours they work each week, the days they work and/or the period they are contracted to work. In this context, a fixed-term contract of 12 months or less will be treated as lacking predictability even if it already fixes the number of hours and/or days of week the worker is required to work. This means that fixed-term workers will be able to ask their employer to extend the length of their contracts.

Separate regulations will set out the conditions workers have to meet to qualify for these rights. The expectation is that they must have worked for the same employer for 26 weeks, but this doesn't have to be continuously. Agency workers who make applications directly to hirers will be required to have worked for their hirer for at least 12 weeks continuously during the 26-week period.  

The framework

Once a worker has made an application setting out the terms they want and when they want them to start, their employer, agency or hirer has a month to reach a decision. Any appeal has to be dealt with within that month which means that employers will have to act quickly.

Employers can reject the application on broadly similar grounds that apply under the flexible working regime. 

Employers can also reject a request if the worker resigns (other than in a situation that would amount to constructive dismissal), or where the employer has dismissed them for a 'qualifying reason' which means one of the five potentially fair reasons set out in s98 of the Employment Rights Act. They must also act reasonably.

Recruitment agencies can reject applications on the same grounds (other than redundancy). And, the hirer can reject the application if the agency worker has refused to continue to work for it (other than where the employer has fundamentally breached their contract) or it has asked the agency to stop supplying the worker to them for legitimate reasons. 

In line with proposed amendments to the flexible working regime, qualifying workers will be able to make two applications in a rolling twelve month period.

Workers will have the option to complain to an employment tribunal if their employer does not handle the request in a reasonable manner, wrongly treats the request as withdrawn, dismisses or treats the worker poorly because of their request, or rejects the application on the basis of incorrect facts.  

When will this come into force?

We don't yet know. The bill has passed its second reading in the House of Commons, but no date has been set for the committee stage. Once it's passed by the Commons it will go to the House of Lords. 

Our best guess is that, unless the government applies the brakes, it should become law later this year. We'll keep you updated. 

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