The Workers (Predictable Terms and Conditions) Act 2023 was passed in September 2023.
Although no date has yet been set, the introduction of the Regulations that will support this act is likely to come into force in Autumn 2024.
Given the timeframes, it makes sense for employers and agencies that have people on zero hours contracts to begin preparing for when the regulations come into effect.
What It Means to Workers
The new act will give employees and agency workers who don’t currently 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.
If a worker’s existing working pattern lacks predictability in terms of the hours they work, the times they work or the length of their contract, they will be able to make a formal request to change their working pattern to make it more predictable. Once the request is made, the business will be required to notify them of their decision within one month.
How Does It Affect Employers?
Whilst the act doesn’t explicitly define “predictable,” it is likely to refer to the employee’s (including Agency) hours worked, days of the week worked and the period of time they are employed for. The period of time will take in fixed-term contracts of less than 12 months.
It is expected that most claims will come from people who are employed on casual or zero-hour contracts, but requests will also be made by employees on contracts requiring a great deal of flexibility. An example of this is shift workers whose change in shifts are not predetermined but may be altered week by week.
The Act makes it very clear that a contract of less than 12 months is not considered to be predictable. Some maternity cover contracts, for example, will fall under this heading and therefore may be a source of future requests.
Fixed-term contracts over 12 months are not covered, so to avoid being affected by the new regulations, some employers may consider issuing only fixed-term contracts for 12 months and over.
There will be a minimum service length requirement; not specified but likely to be 26 weeks, which may not have to be continuous for a request to be made.
Employers’ Right to Refuse Application
Just as with the right to request flexible working. It’s a right to request only.
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 straightforward to apply and will be hard for workers to challenge. But, as with flexible working requests, there may be other factors employers will have to consider, such as the risk for employers of indirect discrimination claims.
It is also important to recognise that a much wider group of people can ask for a predictable contract than can ask for flexible working — although the right to ask for flexible working is restricted to employees (which has a strict legal meaning) and will exclude most casual workers.
Applications will need to be dealt with in a “reasonable manner” and within one month, so employers will need to establish procedures and a policy to handle such requests.
Dealing with Requests
Employees and workers can make a maximum of two applications in any 12-month period. Their application must be in writing and state that it is a statutory predictable working application. They must also specify the change applied for and the proposed date they wish the change to take effect.
An agency worker can apply to the agency and/or the hirer but each request will count toward the maximum number allowed.
There will be penalties if an employer fails to follow the requirements and the employee/worker will be able to bring a claim to an Employment Tribunal. A tribunal can order the employer/agency to reconsider the application or award compensation. Compensation will be based upon the employee’s/worker’s weekly pay and will be subject to a maximum number of weeks and compensation.
Acas (Advisory, Conciliation and Arbitration Service) will introduce a new Code of Practice to help employers navigate between Flexible Working and Predictable Working requests.
Their draft Code of Practice aims to ensure that requests for a more predictable working pattern are handled in a reasonable manner so that a worker’s request is fully understood and considered. It sets out good practice on:
- Holding a meeting to discuss a request before making a decision.
- Who should be allowed to accompany a worker at meetings to discuss a request.
- Accepting a request where possible.
- Only rejecting a request for certain legally allowed reasons and being clear about the reasons for rejecting it.
- Offering an appeal where a request has been rejected.
More information on this, including their consultation, which closes on 17 January 2024, can be found on the Acas website.
This article is supported by our risk management partners, Arch Risk Management. For more information, please visit www.archriskmanagement.co.uk. Registration is free for existing Arch policyholders. If you require more information, please contact your local Arch branch manager.