Right to request a predictable working pattern

The Workers (Predictable Terms and Conditions) Bill

Workers and agency workers are to be given the right to request a predictable working pattern, after the Government announced it is backing a Private Members’ Bill. The Workers (Predictable Terms and Conditions) Bill will apply in England, Wales and Scotland.

Under the Bill’s provisions, workers and agency workers will have the right to request a contractual change to their work pattern, if their work pattern is unpredictable in terms of the number of hours they work, the days or times of the day they work, or the length of their contract. Fixed-term contracts of 12 months or less are presumed to lack predictability. Agency workers will be able to apply to either the temporary work agency or the hirer for a change to their work pattern.

The worker’s purpose in applying for the change must be to obtain a more predictable work pattern. They will have to state that they are making an application for a more predictable work pattern under the statutory provisions, and specify the change requested.

Limit on number of applications

Applications will be limited to two in any 12-month period. This includes any statutory flexible working request designed to achieve a more predictable contract, and, in the case of agency workers, applications to the temporary work agency and hirer are aggregated.

Qualifying period

The right will be subject to a qualifying period of employment, which is likely to be 26 weeks. Where an agency worker is applying to a hirer, they will also need to have worked in the same role with the hirer continuously for 12 weeks.

Employer duties and worker rights

The Bill mirrors the statutory framework for flexible working applications in a number of respects, including:

• Employers, temporary work agencies and hirers will have to deal with the request in a reasonable manner, notify the worker of their decision within one month, and will only be able to reject an application on one or more statutory grounds, which replicate those for refusing a flexible working request. These include the burden of additional costs, detrimental effect on the ability to meet customer demand and insufficiency of work during periods when the worker proposes to work
• Workers and agency workers will be able to complain to an employment tribunal if their employer, the temporary work agency or hirer fails to comply with their obligations or if a decision to reject their application is based on incorrect facts
• Workers and agency workers will have the right not to suffer a detriment for making an application or for bringing proceedings to enforce the right; and
• It will be automatically unfair to dismiss an employee for making an application or for bringing proceedings to enforce the new right.

Taylor Review and Good Work Plan

The Bill implements the Government’s Good Work Plan commitment to introduce a right for all workers to request a more predictable and stable contract after 26 weeks’ service and comes in response to the Taylor Review of Modern Working Practices, which found that zero hours workers struggle with one-sided flexibility, where they are required to be available to work, but have no guarantee of work.

Timescale

The Bill is progressing through Parliament and had its second reading in the House of Commons on 3 February. It is not currently clear when the new right will come into force.

Consultation response on one-sided flexibility?

The Bill does not address other issues considered by the Government in its consultation on one-sided flexibility, including the right for workers to receive reasonable notice of working hours and compensation for short-notice shift cancellation or curtailment. The Government says it will respond to that consultation in due course.

Employers will want to identify who might be affected by the new right and consider how or whether they will be able to accommodate requests for a more predictable working pattern. Please contact us if you would like to discuss this further.