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New legislation grants UK workers the right to request more stable work schedules
Written by James Tamm on 2 October 2023
Millions of UK workers may soon experience a substantial improvement in the reliability and consistency of their work schedules, thanks to new legislation granting them the right to request a more predictable working pattern.
The Workers (Predictable Terms and Conditions) Act 2023, which received Royal Assent on 18 September, aims to empower and encourage individuals engaged in non-standard employment arrangements, such as those on zero-hours or temporary contracts, to engage in discussions with their employers regarding their work schedules, without fearing that this may result in negative consequences.
This new government-backed law is the latest in a recent wave of legislation bolstering workers’ rights. It follows a series of enhanced protections for parents and unpaid carers back in May and, most recently, new legislation granting workers the right to request flexible working arrangements from day one.
One Labour peer said the new Act will give workers additional predictability and security in their hours and income at a time when many are struggling with the rising cost of living.
What's the background?
The Workers (Predictable Terms and Conditions) Act 2023 has been in the works for a while, originally stemming from the government’s Good Work Plan. The plan, which was published in December 2018 and came into effect in April 2020, proposed several changes to the employment landscape, including a right for workers to request a more predictable and stable contract after 26 weeks’ service.
This particular proposal emerged in response to the evolving nature of work patterns associated with the UK’s burgeoning ‘gig economy,’ which has faced substantial criticism in recent years. One of the major criticisms of ‘gig work’, according to the government, is its “one-sided flexibility”, where “workers are on stand-by for work which never comes”. These precarious work arrangements and the inconsistent income makes it difficult for workers to plan ahead or achieve financial stability.
Accordingly, the aim of the legislation was to level the playing field by giving workers in non-standard employment arrangements a degree of job security and income predictability similar to that enjoyed by those in more traditional work arrangements. This was seen as a crucial step in addressing the uncertainties that have become increasingly prevalent in today’s work landscape.
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What type of workers will the Act affect?
The right to request a more predictable working schedule will apply to:
- Workers whose existing working patterns lack certainty in regard to the hours or times they work, such as retail and hospitality employees with irregular shifts or on-call healthcare workers;
- Workers on fixed-term contracts of 12 months or less (who are able to request a longer fixed-term or the removal of any provisions relating to fixed-term), such as seasonal workers and supply teachers;
- Agency workers (who can make their request either to the agency or the hirer provided they meet certain qualifying conditions).
If the original proposal outlined in the Good Work Plan is adopted, the likely qualifying period for these rights will be 26 weeks’ service, though given the nature of gig work, those weeks won’t need to be continuous.
What should a predictable working request contain, and how should employers deal with them?
When submitting a request for a more predictable work arrangement, the worker should clearly outline the desired change, which may pertain to working hours, working days, or the duration of employment. They should also indicate the proposed start date for this new arrangement.
Workers can submit a maximum of two applications in any 12-month period.
Upon receiving a request, employers will be required to deal with it in a reasonable manner and notify the worker of their decision within one month. The procedure will be similar to that of flexible working requests, though employers will have just a month to respond rather than two.
The ability to reject a request will also function in a similar way to the new flexible working laws in that employers will be able to do so based on one of six statutory grounds. These are:
- The burden of additional costs;
- The ability to meet customer demand;
- The impact on recruitment;
- The impact on other areas of the business;
- Insufficiency of work during the proposed periods; and
- Planned structural changes.
If a request is approved, employers must present the new terms to the worker within two weeks of granting the request. Importantly, employers are prohibited from making detrimental changes to other contractual terms simultaneously while implementing the approved request for predictability.
How might this impact employers?
The procedure introduced by the Bill will be familiar to employers, as it closely mirrors the process for a flexible working request. Indeed, the reasons for rejecting requests for a more predictable working pattern are almost exactly the same as those by which a flexible working request can be refused.
For employees, the problem with the flexible working regime is that the penalty for an employer who fails to deal with a request is virtually non-existent. Flexible working rights get their teeth from discrimination legislation as, in the main, requests for flexible working come from female employees. An employer who gives short shrift to a request could well face a sex discrimination claim.
However, the maximum penalty for failing to deal with a request for a predictable working pattern is eight weeks’ pay. For most employers, this probably isn’t too significant a penalty. In addition, it’s unclear at this stage whether most employees who work unpredictable hours are female. If this isn’t the case, then the danger of a sex discrimination claim may not arise for employers.
With all of this in mind, declining requests for predictable working in line with the procedure may well be far less risky, though employers will of course want to be mindful of the reputational impact of doing so. Following best practice and making sure you can review requests appropriately, fairly and with good data to back up decisions will be important.
The other issue is that the legislation does not define what predictable means. Many contracts contain an element of unpredictability – for example, a clause to the effect of “Your normal contractual hours of work are 37.5 hours a week to be worked Monday to Friday 9.00am – 5.30pm. We reserve the right to vary those hours in accordance with the needs of the business”. That too is ‘unpredictable’, but it’s unlikely that workers with contracts such as this were intended to be caught by the legislation.
When will the Act come into force, and how can employers prepare?
The implementation date for these new measures has not yet been confirmed, but it’s expected that the Act will come into effect approximately a year from now in September 2024.
Review all current policies and consider what changes are needed to bring them into line with the new legislation.
Evaluate the sustainability and practicality of your existing working patterns. In particular, implement systems to track demand and assess whether the current patterns adequately address it. This information will be crucial when it comes to evaluating future predictable working pattern requests in an equitable and efficient way.
Communicate the new rights that employees have to your workforce ahead of them becoming law.
Keep an eye out for the Acas Code of Practice and familiarise yourself with it once published to make sure you’re following best practice. The draft code is currently being consulted on and sets out good practice principles for handling requests, including recommending that employers:
- Allow workers to be accompanied at meetings to discuss a request;
- Set out any additional information which is reasonable to help explain their decision;
- Allow an appeal where a request has been rejected.
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Need help preparing for and navigating legal changes?
Staying up to speed with an endless stream of employment law changes can be challenging. Thankfully, WorkNest’s fixed-fee Employment Law and HR support makes adapting to new legislation much easier, ensuring your business remains compliant.
If you would benefit from professional advice and assistance around these latest changes, our expert team can answer your queries, help you to understand how the Act applies to your workforce, and work with you to review and potentially revise your existing policies to ensure they align with this new legislation.
We can also draft employee comms to help you manage expectations and prevent misunderstandings, guide you through requests process, and review employment contracts if requests for a more predictable working pattern are approved.
And if you need systems to support the management of your people’s working arrangements, we offer a range of cloud-based software solutions that can do just that.
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