Predictable working pattern requests – less flex, not more

Our recent blog discussed the government’s reforms to the law around (qualifying) employees’ right to make flexible working requests, but flexibility can be a benefit or a drawback. The 2017 Taylor Review revealed the concerns many workers in the gig economy had around “zero-hours” contracts and similar arrangements whereby workers have no fixed working hours and the hours they do work are often at their employer’s sole discretion.

As the government’s Business and Trade Minister said: “Although zero hours contracts can often suit workers who want to work flexibly and employers whose needs vary, it is unfair for anyone to have to put their lives on hold to make themselves available for shifts that may never actually come.”

In order to seek to address this issue, the government has passed the Workers (Predictable Terms and Conditions) Act 2023, which creates a statutory right for qualifying workers to request a more predictable pattern of work. This right works similarly in a few ways to the aforementioned right to request a more flexible working pattern.

Who can request a more flexible working pattern?

To make a request under the new Act, a worker (note they need not be an employee) must have an uncertain working pattern in terms of:

1. their hours of work
2. their days of work
3. the times they are required to work; or
4. the period for which they are contracted to work.

A worker on a fixed-term contract of less than 12 months will also be deemed to have an uncertain working pattern and will be able to bring a request under the Act.

The Act will also apply to agency workers, who can raise a request to either their agency or the hiring entity for whom they carry out work.

While the Act does not specify a qualifying period of time for which workers need to have worked for their employer before being allowed to raise a request for a more predictable working pattern, this will be confirmed by way of secondary legislation in due course, and the qualifying period is anticipated to be 26 weeks.

A worker will be able to make up to 2 applications under the Act each year.

Raising requests and how the employer must deal with them.

The government may at some point introduce a particular form which requests must take, but for the moment the Act simply states that requests must state that they are an application under section 801A of the Act for a more flexible working pattern, and the application must specify the desired change to the worker’s working pattern and the date on which it is proposed to take effect.

Once a request pursuant to the Act has been raised, the employer must:

1. deal with the request reasonably.
2. notify the worker of the decision within one month.

As with flexible working requests, an employer may refuse a request under the new Act on one of 6 statutory grounds, which are currently:

1. the burden of additional costs to the business.
2. detrimental effect on the employer’s ability to meet customer demand.
3. detrimental impact on the recruitment of staff.
4. detrimental impact on other aspects of the employer’s business.
5. insufficiency of work during the periods the worker proposes to work.
6. planned structural changes.

A request under the Act can be treated as having been withdrawn by the worker if:

1. the worker fails to attend a first meeting arranged by the employer to discuss their application and the second meeting arranged for this purpose; or
2. (where the employer allows the worker to raise an appeal in respect of a request under the Act) the worker fails to attend a first meeting arranged by the employer to discuss their appeal and the second meeting arranged for this purpose; or

In either case, the employer must notify the worker that they are treating the above conduct as a withdrawal.

When will this be law?

The government has stated that the Act and any associated measures introduced in future secondary legislation will take effect approximately one year after the Act attains Royal Assent (which happened on 18 September 2023).

While at first instance this reform might give employers in some sectors cause for concern -for example, businesses in the hospitality sector or the delivery sector- in reality there is fairly broad scope for employers to decline a request for a worker to have a more predictable working pattern, providing they can rely on one of the statutory grounds.

As such, whilst the new Act creates more administrative work for employers who receive such requests, it is unlikely to change much in terms of the way the way their workers work in practice.