The Worker (Predictable Terms and Conditions) Bill has this week received Royal Assent. The Act will give workers and agency workers the right twice a year to request a predictable work pattern if their work is currently unpredictable, ie their contract is for 12 months or less, or is for an unpredictable number of hours or days of the week or times.
Regulations will set out the qualifying period to be eligible to make a request, which the government expects to be 26 weeks’ service. The press release notes that, given that the Act concerns workers with unpredictable working patterns, they will not have to have worked for their employer continuously during that period.
The government expects the new rights to come into force approximately one year after Royal Assent, to give employers time to prepare for the changes. This Autumn, Acas will draft and consult on a new statutory Code of Practice to provide guidance on how requests should be made and considered. Employers with atypical workers will need to put in place appropriate policies and procedures once further detail has been set out in the Regulations and statutory Code.
In more detail
The statutory framework will be similar to that for making flexible working requests. Requests must be dealt with ‘in a reasonable manner’ and employers will be able to reject a request for a more predictable working pattern based on one of six statutory grounds (similar to those for flexible working).
One key difference to note is that employers will be required to notify the worker of their decision (including on any appeal offered) within one month of the request, without the ability to agree an extension. This is shorter than the period for flexible working requests (currently three months, with the potential to extend, and due to be reduced to two months – see here).
There are additional potential grounds for refusal of a request where the worker stops working for the employer after making the request: that the worker resigned (other than in response to a repudiatory breach by the employer), or that the employer acted reasonably in terminating the contract for a ‘qualifying reason’ (in essence, for what would be a potentially fair reason and with a fair procedure as prescribed in unfair dismissal law).
If the employer accepts a request after the current contract has ended, a new contract reflecting the agreed change (and with no less favourable terms taken as a whole) must be offered within two weeks. Notably the Act does not set out a timeline for employers to give effect to an agreed change where the worker has remained employed since making the request. Presumably the statutory Code will set out expected timing for this, which would then be relevant in determining whether the request was dealt with ‘in a reasonable manner’.
The potential remedies will also be similar to the flexible working regime: an order to reconsider the request, and compensation up to a maximum number of weeks’ pay (subject to the statutory cap on a week’s pay) to be set by regulations (for flexible working requests this is 8 weeks’ pay). There will also be protection against detriment and unfair dismissal.
This may be only the first of a number of changes concerning atypical workers. The government’s 2019 consultation also proposed a right to reasonable notice of working hours and compensation for shifts cancelled without reasonable notice; the government’s response is still awaited. (Similar measures already apply to EU workforces pursuant to the EU Directive on transparent and predictable working conditions, which had to be implemented by August 2022.) Meanwhile, the Labour Party have stated that they would ban zero hours contracts altogether. Employers with atypical workers will need to keep a close eye on developments.
For further information, please contact:
Anna Henderson, Herbert Smith Freehills
anna.henderson@hsf.com
