Workers get new right to request predictable working hours

Last month, the Workers (Predictable Terms and Conditions) Act 2023 was passed which will give qualifying workers the right to ask for a more predictable working pattern. 

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. 

This Act goes further than that. It will give employees, workers and agency workers who don't have predictable working patterns the right to ask that the number of hours they work and when those hours are worked is made more predictable.  

What does predictable mean?

It isn't explicitly defined but relates to a worker's work pattern and is widely drawn to include: the number of hours worked, the days of the week and the times worked on those days, and the period they are contracted to work. This includes fixed term contracts which are for less than 12 months. There are almost identical provisions for agency workers.

Whilst the majority of requests are likely to come from those people who have unreliable work - such as casual staff and those engaged under zero hours contracts, it could apply to anyone whose hours or days vary in a way which provides them with an absence of certainty. This could include employees with fairly typical contractual terms which require them to work additional hours 'as and when required' (whether paid or not) on the basis that there is, in fact, a lack of certainty over the number of hours they do actually have to work. It would certainly also include shift workers whose hours are determined by a rota which doesn't have a specific pattern and varies from week to week or month to month as directed by the employer. But, shift workers who are required, for example, to undertake one week on earlies and the next on lates wouldn't be able to apply because that pattern is predictable. 

Fixed term contracts of less than 12 months throw up some interesting practical issues for employers using these types of contracts. The Act makes it very clear that a contract for less than 12 months is not, by its nature, predictable and is therefore within scope. If organisations would ordinarily issue a contract for 12 months, will they decide to issue slightly longer contracts to avoid the hassle of having to deal with these sorts of requests? Time will tell.

Do workers need to have worked for a certain amount of time before they can make a request?  

Yes - all workers will be subject to a minimum service length requirement. Although the length of this has not yet been specified in the Act, the government's press release refers to 26 weeks. It doesn't say that the 26 weeks has to be continuous, but it does require workers to be employed, by the same employer, at some point during the month immediately before the minimum service period, ending with the making of the application.

Agency workers will also have to meet qualifying conditions. 

Will employers be able to turn down requests? 

Yes. The right works in a similar way to the right to request flexible working. It's a right to ask rather than a right to obtain what the worker wants. 

An employer can reject a request on one of the following six grounds (which are very similar to those that apply when turning down flexible working requests):

• the 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
• Planned structural changes

These are straight forward to apply and will be hard for workers to challenge. But, there may be other factors employers have to consider before turning down requests. 

The risk for employers rejecting flexible working requests, is of indirect discrimination claims. For example, a woman who asks to work part-time or change her hours to accommodate the school run may argue that a rule which requires full-time hours or core hours indirectly discriminates against her, because of her sex, because women still shoulder most of the responsibility of looking after children. It’s possible that workers will try to utilise similar arguments to challenge requests made under this regime. In that context, it’s important to recognise that a much wider group of people can ask for a predictable contract than can ask for flexible working. The right to ask for flexible working is restricted to employees (which has a strict legal meaning) which will exclude most casual workers.

The employer/agency must deal with the application in a reasonable manner and has a month to conclude the process. Employers will, therefore, need to put procedures in place to ensure they deal with any requests within a tight timescale.

It's also possible that a worker who makes a request for flexible working may actually be deemed to have a made a request under this scheme, if the reason is to obtain a more predictable work pattern. If it does, it will count towards the maximum number of applications that can be made (see below). And, if the employer doesn't realise this and doesn't resolve the request within a month (because, it assumes it has longer to do this under the flexible working regime), it will breach the regulations. Acas are going to produce a new Code of Practice which, hopefully, will help employers to decide which statutory regime they need to follow.  

What rules do workers have to follow when making requests? 

Workers can make a maximum of two applications in any 12-month period. Their application must be in writing, state that it is a statutory predictable working application, and specify the change applied for and the date on which it is proposed it should take effect.

An agency worker can apply to the agency and/or the hirer but each request will count towards the maximum number allowed. 

Will employers be penalised if they breach these rules?

Yes. If an employer fails to follow the requirements the worker will be able to bring a claim in the Employment Tribunal. A tribunal can order the employer/agency to reconsider the application or award compensation. It will assess compensation by reference to the worker's weekly pay and will be subject to a maximum number of weeks. 

When will it come into force?

Like much recent legislation, the Act provides a framework, and the government will need to issue separate Regulations before it comes into force. We expect that to happen next year. The Regulations will also fill in some important details such as the length of service required to make a request (expected to be 26 weeks), the formalities required to make a request and the maximum amount of compensation a worker will receive if the employer breaches these rules. 

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