Workers given right to a predictable working pattern

On 18 September 2023, the Workers (Predictable Terms and Conditions) Bill received Royal Assent, becoming the Workers (Predictable Terms and Conditions) Act 2023. The Act is not yet in force and, despite the reference to predictability in the Act’s title, it is ironic that we do not have an exact date for this, and business cannot plan for the future with certainty. The government has said it is likely to come into force in late 2024.

The Act is the government’s bid to tackle unfair working practices which see many workers and agency workers left without any type of predictable working pattern and often waiting around on the possibility of being called in to work at short notice. This issue can particularly impact those with care responsibilities. The Act will amend the Employment Rights Act 1996 to give workers and agency workers, including those on zero hours contracts, a right to request a more stable and predictable work pattern after they have worked in the same role for a set period of time, likely to be set at 26 weeks.

The right to request a more predictable working pattern will be applicable in the following circumstances:

• Where the change sought relates to a particular work pattern – which could include the period of time contracted for and the number of working days/hours
• Where the purpose in applying for the change is to get a more predictable working pattern
• Where there is a lack of predictability as regards to any part of a working pattern. This specifically includes fixed term contracts of twelve months or less as they are presumed to lack predictability.

Applicants will be able to make two applications within a twelve-month period. Employers will be expected to respond within one month of the application and to deal with the application reasonably. Any application may only be refused for specific reasons, which are:

1. The burden of additional costs
2. Detrimental effect on 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
7. Such other grounds as may specify by regulations.

A worker will be able to bring Employment Tribunal claims on the basis of procedural failings by the employer, including refusal for reasons other than the specified grounds above, and can also bring a claim if they have been subjected to detriment on the grounds that they made an application for predictable terms. Employees can additionally claim automatic unfair dismissal if the reason or principal reason for dismissal was that the employee made an application for predictable terms.

As the Act is expected to come in to force in about 12 months’ time, employers have time to prepare for its implementation. As part of this preparation, it is recommended that employers review staff working arrangements now to identify any roles where there are unpredictable working arrangements and to consider whether there are any alternative arrangements that could be accommodated.