Written by JMW Solicitors LLP
The policy paper known as the ‘Good Work Plan’, published on 17th December 2018, addressed the Government’s strategies towards the future development of employment rights. One of the headline commitments was the introduction of the right to request a more stable contract for those on zero-hour or casual contracts of employment. In response to the Good Work Plan, the Department for Business, Energy and Industrial Strategy (‘BEIS’) published the “Good Work Plan: consultation on addressing one-sided flexibility”.
BEIS’ consultation paper went a step beyond the commitments within the Good Work Plan, and aimed to address the one-sided flexibility which employers have over the casual staff they employ. Specifically, they recommended that:
- Every worker should have the right to reasonable notice of their working hours.
- Workers should be given compensation for the cancellation of work without reasonable and prior notice.
- Workers should be allowed to switch to a contract which reflects their normal working hours.
As the consultation paper was released in 2018, those affected by the proposals have long awaited a formal Government response. The highly anticipated Employment Bill has stalled in progress and wasn’t mentioned in the Queen’s Speech on 11 May 2021 or 10 May 2022. Whilst it was anticipated that one-sided flexibility could be included within the Employment Bill, more recently a number of Private Members Bills have attempted to address the reforms which would have been included in an overarching Employment Bill. One of these was the Workers (Predictable Terms and Conditions) Bill, which received Royal Assent on 18 September 2023, and is now a Legislative Act.
The right to request a predictable work pattern
The Workers (Predictable Terms and Conditions) Act 2023 will introduce a right for a worker (including employees) or an agency worker to request a predictable work pattern. The headline points of the scheme are as follows:
- A worker can request a change to their terms and conditions where there is a lack of predictability with regard to their work pattern. This can apply to any part of their work pattern such as the number of hours worked, the days of the week worked or the period for which the worker is contracted to work.
- It is assumed that a fixed-term worker on a contract for a period of less than 12 months does not have a predictable working pattern, and therefore they could apply for a longer fixed term or for a permanent contract of employment.
- A worker can make two applications in any 12-month period.
- An application must be put in writing to their employer, state that it is an application, and detail the requested changes. Any application must be dealt with by the employer within 1 month of receipt, and there are seven grounds in which an application can be refused:
- 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 may be specified in regulations.
- The employer must handle the application reasonably and ACAS have committed to producing a code of practice on what ‘reasonable’ actions employers must take upon receipt of an application.
- The right is not a ‘day one’ right, and whilst the length of service gained prior to making a request has not yet been specified, it will likely be 26 weeks’ service. It is important to note that it will not be a requirement for the worker to consistently work for 26 weeks as of the date of the application, as they may well be on a zero-hours or casual contract of employment.
- There will be a right to make a complaint to the Employment Tribunal for breaches of the statutory scheme, which we expect will result in compensation of a few weeks’ pay.
- An agency worker can make an application to either a temporary work agency or a hirer, to engage them on a contract of employment directly. An agency worker, who is engaged to work personally for the hirer but is not on a contract of employment, can make an application to be engaged on a contract to do the same or broadly similar work which the worker currently does for the hirer. We assume that this provision has been included so as to not preclude those on contracts for services, albeit those who perform work personally, from making such applications.
On the face of it, the provisions appear to mirror the statutory flexible working regime. There is no inherent right for a predictable working pattern, which the BEIS consultation paper seemed to be angling for, however there is a right to make an application and a requirement for employers to seriously consider how it would affect their business operations. This scheme would benefit those the most who are on a zero-hours contract, however in reality, they work a set number of hours and days and would like that working pattern to be reflected in a written contract.
We expect that similarly to the flexible working regime, employers will make use of the grounds to refuse an application as their use of casual and zero-hour workers is often based on fluctuating levels of customer demand. For example, if a zero-hour worker requests a full-time working pattern, then their employer may be able to rely upon the ground that there is insufficiency of work during the periods the worker proposes to work. Nevertheless, employers need to be careful to deal with requests in a reasonable manner unless they risk claims being brought against them.
As with any statutory scheme, whilst there is a right to compensation amounting to a few weeks’ pay, the greater risk lies with discrimination and detriment claims. If one worker’s application is refused whilst other workers’ applications are accepted, then the worker whose application was rejected may cite discriminatory reasoning for the disparity in treatment. Furthermore, if a worker is treated poorly following the making of an application, then they could make a complaint to the Tribunal that they have suffered a detriment due to the assertion of a statutory right. This is why it is important for employers to always justify their actions, in writing, and ensure that a thorough and fair process is followed.