Employment & Pensions Blog: Right to request predictable working patterns

The Workers (Predictable Terms and Conditions) Act received Royal Assent last month, addressing the ‘one-sided flexibility’ that workers face in the gig economy.

What has changed for both workers and their employers?

The Workers (Predictable Terms and Conditions) Act (“the Predictable Terms Act”) will amend the Employment Rights Act 1996 and is expected to come into force around September 2024, accompanied by the secondary legislation.

The Predictable Terms Act will give workers and agency workers the right to request a change in terms and conditions of employment if:

• There is a lack of predictability in relation to their work pattern (such as hours, days, time of work and the period they are contracted for);
• The change relates to their work pattern; and
• Their purpose in applying for the change is to get a more predictable work pattern.

Once a request has been made, it has to be dealt with in a reasonable manner, giving an outcome within one month of the application being made. Although these changes may help workers to gain more predictability over working patterns, similar to flexible working requests, employers have the right to refuse a request provided this is based on one of the specified business reasons. Some of these reasons include, the burden of additional costs, detrimental impact on the recruitment of staff or other aspects of the employer’s business. If a request is rejected, workers should be given the right to appeal should they wish to do so.

If a request is accepted the employer must offer the worker a new contract within 2 weeks with terms and conditions that are no less favourable than the worker’s previous contract, and reflecting the change requested.

ACAS will be producing a new Code of Practice to provide guidance on making and handling these requests in Autumn 2023.

Comment

As mentioned at the outset, secondary legislation will be introduced before this right comes into effect which will importantly set out further detail on the form of application, compensation for breach of the legislation as well as any service requirement to make a request, which is expected to be 26 weeks (which doesn’t have to be continuous).

The right to request predictable working follows a number of changes announced to workers’ rights in recent months including a day one right to request flexible working, extensions to redundancy protections for those on maternity leave and the introduction of neonatal care leave. Whilst working flexibly with varying hours, times and contract lengths may suit some workers, this new legislation will give the right to request a more predictable pattern for those who need it. As with flexible working it is important to remember that it is only a right to request that is granted to the worker, not a right to have a more predictable working pattern if this is not possible for one of the specified business reasons.

In advance of the legislation being introduced, employers may want to prepare by starting to draft procedures to be followed when making/considering a request. Failure to adhere to the legislation can result in an employment tribunal claim by the worker, therefore having a clear procedure will help employers navigate their way through any requests made and mitigate the risk of successful claims.

For further information please contact a member of the Employment Team.