The right to request predictable working – new rights for employees and workers

Employees and workers will have a new right to request a predictable work pattern in certain circumstances under new legislation, which has received Royal Assent.

The Workers (Predictable Terms and Conditions) Act 2023 provide that a worker will be able to request a change to their terms and conditions of employment where:

There is a lack of predictability as regards any part of the worker’s work pattern,
The change relates to their work pattern; and
Their purpose in applying for the change is to get a more predictable work pattern.

The work pattern is made up of the number of hours the worker works; the days of weeks and times of day when the worker works; and the period for which the worker is contracted to work.

Fixed-term contracts of 12 months or less are presumed to lack predictability. A worker with a fixed-term of 12 months or less can apply for a longer fixed-term or the complete removal of the provision in their contract restricting its length (in effect making the contract permanent).

Making a request for a predictable work pattern

Workers will need a minimum length of service with the same employer to be able to make a request. The service requirement will be clarified in future regulations, although it is anticipated that this will be 26 weeks in line with current regulations relating to flexible working requests. Workers will be able to make two applications in any 12-month period.

When making a request, the worker must state that it is an application for a more predictable working pattern. They must also specify the change applied for and the date on which it is proposed the change should become effective. Further regulations may set out further detail about the form of applications.

Employers must deal with the application in a reasonable manner and notify the worker of a decision within a one-month decision period. Employers will be able to refuse the request on one of a number of specified grounds:

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, and
such other grounds as the Secretary of State may specify by regulations.

If the worker’s contract with the employer ends during the decision period, the employer can also refuse the request on the ground that the contract has ended.

If the request is granted, the employer must offer the worker a new contract with terms and conditions that are not less favourable than their original terms and conditions; and reflects the change to the working pattern.

Workers will be able to issue a claim in the Employment Tribunal if the employer has failed to comply with the procedure or if the employer’s refusal of a request is based on incorrect facts. The Tribunal may order the employer to reconsider the application and may award compensation. The maximum amount of compensation that a Tribunal will be able to award will be clarified in future regulations.

Comment

According to the Government the new legislation will give millions of workers more say over their working patterns. This new right may be of interest to casual workers, zero hours workers, or those on short fixed-term contracts. However, in the same way as with flexible working requests, the new right is a right to request a predictable working pattern, not a right to be given a predictable working pattern. The employer will be under no obligation to agree to the request.

The Act and further regulations are expected to come into force approximately one year after Royal Assent, so that employers have time to prepare. ACAS will produce a new Code of Practice to provide guidance on making and handling requests. It is expected that a draft of the Code will be available for consultation in the coming weeks.

Our separate post on changes to existing provisions on flexible working requests can be seen here.

29 September 2023

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