Employment Law Digest August – The Workers (Predictable Terms and Conditions) Act 2023

In the ever-changing landscape of UK employment law, the Workers (Predictable Terms and Conditions) Act (the “Act”) is a landmark piece of legislation that aims to improve the rights of workers and agency workers across the country. Whilst it received Royal Assent last year, the regulations – which include key provisions designed to ensure that workers are treated fairly in the workplace – is expected to come into force in September 2024.

Increased Clarity

At present, there is no legal right to request a more predictable working pattern. The Taylor Review of Modern Workplaces published on 11 July 2017, identified a problem of “one-sided flexibility” where a worker has no guarantee of work, yet is expected to be available at short notice when required. This creates unpredictability of working hours, insecurity around income and a reluctance among workers to assert basic employment rights.

The Act seeks to establish predictable terms and conditions so workers have a clearer understanding of the expectations upon them. This includes clarity on working hours, breaks and pay rates which must be set out in writing and agreed by both the employer and worker.

Workers with 26 or more weeks’ service, will have the right to request more predictable shift schedules if:

• There is a lack of predictability in their working pattern
• The change relates to their work pattern
• The purpose in applying for the change is to achieve a more predictable working pattern.

Interestingly a fixed term contract of 12 months or less is presumed to lack predictability and so the number of workers eligible to apply could be substantial.

Employers must respond within one month, and non-compliance with the new rules may lead to Employment Tribunal claims and awards of compensation. Remedies will be available to workers and agency workers if their request is rejected or if they suffer detriment or dismissal as a result of their request or any complaint in respect of it.

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Take Me There

As with the right to request flexible working, employers will retain considerable discretion when accepting or rejecting requests for predictable working, but a refusal must be based on at least one of six prescribed statutory reasons:

• The burden of additional costs
• Granting the request would cause detrimental impact to the employer’s ability to meet customer demand
• Granting the request would cause detrimental impact to the employer’s ability to recruit staff
• Granting the request would cause detrimental impact to aspects of the temporary work agency’s or hirer’s business
• There is insufficient work available for the worker to do
• There are planned structural changes.

Employers who operate in industries that rely on working arrangements that are unpredictable in nature, will still be able to do so, but they will need to ensure processes are in place so that requests for predictable working patterns are dealt with appropriately.

Individuals will be limited to being able to make a maximum of two applications in a twelve month period and flexible working requests will count towards this limit.

New Government Backing

With the new Labour Government also pledging to ban exploitative zero hours contracts and ensure all jobs provide a baseline level of security and predictability, it is unsurprising that the Government is continuing to back the Act and what it aims to achieve. However, Labour has gone one step further than the right to request predictability by proposing to give workers the right to a contract that reflects the number of hours they regularly work, based on a 12-week reference period. They also pledged to give workers a right to reasonable notice of a change in shifts or working hours and employers may be required to compensate workers for cancelled shifts.

Automatic Unfair Dismissal

It will be automatically unfair to dismiss an employee because they make or propose to make an application for a predictable working pattern or if they bring proceedings in relation to an application. It will also be automatically unfair to select an employee for redundancy on this basis.

ACAS Code of Practice

To assist with interpretation, further guidance is to be introduced from ACAS which is currently in draft form after a consultation period from October 2023 to January 2024. The Code will not be legally binding but will be taken into consideration by employment tribunals.

This Act is a crucial piece of legislation that prioritises the well-being and rights of workers. However, its implementation may pose challenges for employers in terms of placing a greater administrative burden upon organisations as they work to achieve  compliance.

By establishing clear and predicable terms and conditions, protecting against unfair treatment and ensuring fair wages, it is in theory a substantial step closer to creating a more inclusive and supportive work environment for all. We will need to monitor its implementation  to see if it achieves this goals in practice and how employers adapt to the change.

If you would like anymore information about this case or any other related Employment law advice please get in touch with an expert member of the Employment Law team.