The Workers (Predictable Terms and Conditions) Bill proposes to give eligible workers a new statutory right to request a more predictable working pattern. This follows the Taylor review of modern working practices and the resulting 2018 Good Work Plan in which the government committed to introduce policies to end 'one-sided flexibility'.
The right to request a more predictable work pattern
Eligible workers (not just employees) will have the right to make a request where:
- There is a lack of predictability as regards any part of their work pattern (the work pattern being the number of working hours, the days of the week and the times on those days when the worker works, and the length of the worker's contract);
- The change relates to their work pattern; and
- Their purpose in applying for the change is to get a more predictable work pattern.
An application must state that it is a request for a more predictable working pattern, and specify the change applied for and the date on which it is proposed it should take effect.
The Bill does not contain other earlier government commitments to introduce a right to reasonable notice of working hours and compensation for shifts cancelled without reasonable notice.
A worker can only apply for a change to their working pattern if they have been employed by the same employer (whether or not under the same contract) at some point during the month immediately preceding a 'prescribed period' (this will be specified in regulations and is expected to be 26 weeks ending with the date of the application). There is no requirement for the service to be continuous.
A worker can only make two applications in any 12-month period. This includes any application under the flexible working provisions if that request is for a change which would result in a more predictable contract.
The Bill contains a similar set of rights for agency workers:
- An agency worker may be able to apply to a temporary work agency for a more predictable working pattern where they have had a contract with the agency at some point in the month immediately before a 'prescribed period' (to be set out in regulations).
- If the agency worker has worked for a hirer in the same role continuously for 12 weeks (within a period which will be set out in regulations) they may also be able to apply to the hirer for a contract of employment, or other worker’s contract, which is more predictable than their current working pattern.
What is meant by a 'lack of predictability'?
There is no definition of 'predictability' in the Bill. It does, however, specifically state that workers on a fixed term contract of 12 months or less may request that the term is extended or becomes permanent. Other than that, it seems that a 'lack of predictability' will cover any worker whose hours or days vary in a way which provides them with uncertainty, such as:
- Casual / zero hours workers without a guaranteed number of hours;
- Annualised hours workers if the employer has discretion over the working pattern;
- Workers whose hours are determined by a shift pattern or rota, where that pattern / rota varies unpredictably.
Dealing with requests
In many ways the process for dealing with requests reflects the flexible working regime. There is no obligation on the employer to agree to a request, but they must deal with the application in a reasonable manner and respond within one month. An employer can only reject an application for one or more of the specified reasons, which are:
- 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.
If the worker's contract terminates during the one month 'decision period' the requirements still apply. However, there are then some additional acceptable grounds for refusing a request such as the employer having acted in reasonably in dismissing for misconduct or redundancy.
A worker will be able to bring an employment tribunal claim if an employer fails to follow the requirements set out above which, if successful, could result in an order for reconsideration of the request or compensation. The amount of compensation will be set by regulations and could be limited to 8 weeks' pay as it is under the flexible working regime.
There is no timetable for implementation yet and, as noted above, some of the detail of how the right to request will operate in practice still has to be set out in separate regulations.
The new right will have the most impact in sectors where the use of casual workers and changeable shift patterns / rotas is widespread, and on businesses using short fixed-term contracts or agency workers. It is likely to lead to an increased focus on how best to manage these type of working arrangements.
The Bill only provides for the right to ask for a more predictable working pattern, not a right to a predictable working pattern. However, organisations which engage individuals on unpredictable working patterns will need to establish policies and procedures to deal with requests. They should also be aware that, if employment status isn't clear, an individual might claim worker status while making an application for a more predictable working arrangement
Please contact a member of Brodies employment and immigration team for more information.