Predictable working pattern request: A right for the future
by Gina McCadden, Clarke Willmott
New legislation recently received Royal Assent which permits workers who do not have clear and predictable working patterns to request this from their employers.
The Workers (Predictable Terms and Conditions) Act 2023 introduces a new statutory right for workers to request a more predictable working pattern. The Act comes into force to try to address the issue of ‘one sided flexibility’, especially for workers in the gig economy.
Who can make the request?
The legislation was first suggested as part of the Taylor Review in 2017. Workers who have uncertain working patterns regarding their hours and times of work, such as zero-hours workers, and those on a fixed-term contract of 12 months or less, will be able to request a change to their working pattern.
It is expected that to be able to make a request, workers will need at least 26 weeks service. This will be confirmed in secondary legislation and it is unlikely that service will need to be continuous to be eligible.
If requested, the worker will need to outline clearly that it is an application within the relevant legislation and specify the change that they wish to have made to their contract and the date on which it should take effect. A worker will only be able to make a maximum of two requests in any 12-month period.
Employer response to a request
Employers are required to respond to requests reasonably and must notify the worker of their decision within one month. If a change is accepted, then the employer will need to provide new terms and conditions within two weeks. These terms cannot impose detrimental changes to other contractual terms at the same time as making the changes which have been approved as part of the process.
Employers can refuse a request for certain permitted reasons. There are specified grounds contained within the Act such as the burden of additional costs, detrimental impact on recruitment of staff or planned structural changes. The Secretary of State also has the right to implement additional grounds for refusal.
What process must be followed?
The legislation currently does not set out a process, however, it is expected that ACAS will be producing a Code of Practice which will provide helpful guidance on how an employer should handle a request. It is likely that employers will need to meet with employees to discuss the request in detail, prior to any decision being made as to whether the request can be accepted or rejected.
When does this process come into effect?
The Government has announced that the measures in the Act and any secondary legislation will come into force one year after the date of Royal Assent. Employers will therefore need to ensure they have appropriate measures in place to deal with these requests by September 2024.
Gina McCadden is a solicitor in the employment and HR team at Clarke Willmott.
