Workers’ rights to request predictable working

The Government has recently given its support to the Workers (Predictable Terms and Conditions) Bill which will give workers the right to request a predictable working pattern. An employer has the ability to refuse such a request, but there is a statutory process to follow with legal consequences and financial penalties for non-compliance.

The idea originated in the 2017 Taylor Review of Modern Working Practices, which recommended that the Government should introduce a right for zero hours contract workers to request a more predictable contract.

While all employers will need to understand this new statutory process, the impact is likely to be felt most acutely by businesses that use casual workers or rota-based systems. In this Law-Now we outline the details in the Bill and the impact for employers. There is no timescale for implementation, and the Bill has still to complete its parliamentary journey.

Who is eligible?

Workers

Workers will be entitled to apply for a change in terms and conditions of employment if there is a lack of predictability in relation to any part of their work pattern and the purpose in applying for the change is to obtain a more predictable work pattern.

A lack of predictability in working patterns will apply where there is a lack of certainty in relation to the hours they work, or the days of the week, or the times they work or the period for which they are contracted.

If the worker is employed on a fixed term contract (FTC) for 12 months or less, then they are presumed to lack flexibility. In relation to FTCs the purpose of making the request must be to either extend the FTC or convert it to a permanent contract.

It is expected that the final regulations will stipulate that a request cannot be made until a worker has 26 weeks’ service (although the applicant will not be required to have worked continuously during this period). The Bill stipulates that only two requests can be made within a 12 month period.

Agency workers

Agency workers can apply directly to the temporary work agency and request predictable working.  The provisions on agency workers are similar to the rules on workers, with one notable difference. Agency workers will also have will have the additional right to apply to the end user business for a more predictable contract if they have worked for the employer in the same role for 12 continuous calendar weeks and they are still in that role when the application is made.

If the agency worker applies to the end user business for the predictable contract, then they should be engaged on terms and conditions no less favourable than employees carrying out broadly comparable work.

What information should a worker’s request contain?

A worker’s request must contain certain minimum information setting out what they are seeking in relation to the predictability of working pattern and the proposed start date. It is expected that further details around the process will be contained in regulations.

How should an employer respond to a request?

Employers must deal with a request for predictable working in a reasonable manner, notify the worker of their decision within one month of the request being made (referred to as the ‘decision period’) and, similar to the right to request flexible working, may only refuse a request on one or more of six specified grounds. The grounds 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,

and the Bill makes provision for the Government to introduce other grounds for refusing a request.

There is no requirement in the Bill to have a meeting to discuss a request for predictable working, although we may see more information on this point when the detail is set out in regulations. There is also no right of appeal, although the Bill anticipates that an employer may allow a worker to appeal a decision to reject a request. The Bill provides that, if a worker without good reason fails to attend two meetings to discuss their request, or two appeal meetings where their employer has allowed them to appeal, then the employer may treat the request as withdrawn. If an appeal is given it must be completed within the one month decision period.

In addition to dealing with situations where a request may be withdrawn, there are also rules that apply where the worker’s employment ends during the decision period. If a worker is no longer in employment and the employer grants their request, they then have two weeks from this date in which to make a formal offer of work on those new terms. This two-week offer period does not apply when a worker is in employment.

Remedies

A worker may bring a claim in the employment tribunal if the employer rejects the worker’s request based on incorrect facts, the employer deals with the request in an unreasonable manner, or fails to respond in the timescale. The level of compensation is not set out in the Bill but the regulations may follow the same format as the flexible working provisions where compensation is capped at 8 weeks’ pay.

Workers and agency workers will also be protected from detriment and automatic unfair dismissal because they have made a request or sought to enforce the right.

Impact and comment

• From a practical perspective, employers will need to understand the new right and put in place a policy to deal with requests.  Managers and HR dealing with the requests should be trained on the final rules. One month to deal with a request, arrange a meeting, draft an outcome letter and hold an appeal is a fairly short timescale.
• One of the interesting points to emerge is the fact that FTCs of 12 months or less are presumed to lack flexibility. This may mean that employees working on a maternity cover FTC make a request to extend their contract or ask for a permanent contract (provided they have the minimum continuous service).
• There could also be indirect discrimination liabilities where an organisation routinely rejects requests from certain groups (even if for one of the specified grounds). Women are often disproportionately represented in low-skilled and low-paid work that is associated with unpredictable working patterns. Other in-scope groups identified in the equalities section of the Bill’s Impact Assessment include younger workers, those who are classified as disabled under the Equality Act 2010 and workers from ethnic minority backgrounds. Rejection rationales will therefore need some careful thought to manage this risk.
• Another new aspect is the ability of agency workers to make a request for a predictable contract directly to their hiring employer if they have worked in the same role for that employer for 12 weeks. Businesses may wish to revisit and update their standard terms with agencies on how such requests are dealt with, and apportionment of liabilities.
• Organisations with large casual worker or rota-based populations may wish to plan ahead and take a strategic approach to variations in contractual hours, rather than react to a volume of individual requests.