New law gives UK temporary and agency workers a right to request more predictable working patterns
Published on 26th Sep 2023
Employers, and suppliers and users of agency worker, can expect the changes to come into force next year
The Worker (Predictable Terms and Conditions) Act 2023, which received Royal Assent on 19 September, will give all eligible workers a statutory right to make up to two requests a year for a more predictable working pattern.
A right to request can be made where there is a lack of predictability in relation to the work that the worker does for the employer regarding any part of their working pattern, which covers matters such as the number of hours worked, the days and times worked and the period for which the worker is contracted to work.
Where a fixed-term worker is on a contract of 12 months or less, this will be regarded as lacking predictability as regards the period for which the worker is contracted to work. Generally, this may most affect temporary and agency workers engaged in roles in which shifts get changed and are not guaranteed or predictable and, in the case of agency workers, those who have lasted longer than 12 weeks in the same role (much like the qualifying period for Agency Worker Regulations purposes).
New process
An employer must deal with a request in a reasonable manner and will only be permitted to refuse a request on one of six statutory grounds: additional cost, ability to meet customer demand, impact on recruitment, impact on other areas of the business, insufficiency of work during the proposed periods and planned structural changes. An employer must deal with a request for a predictable working pattern within one month. Additional grounds of objection apply where a worker ceases to be employed by an employer during the decision period.
Regulations will provide more detail on how the right will operate in practice; at present, it is expected that employees and workers will need to have first worked for their employer for 26 weeks before making an application. Regulations will also set out the compensation that a worker or employee might receive if their rights under the new laws are breached; as with a breach of the statutory right to request flexible working, this is likely to be a specific number of week's pay. An Employment Tribunal may also order a reconsideration of an employer's decision.
Agency workers
There are separate provisions which set out how the new right will operate for agency workers who wish to make a statutory request for more a more predictable working pattern to their temporary work agency or hirer. They can make the request to the employment business via which they work or the end user under whose direction and supervision they work. Any claim made by a worker who is otherwise treated as self-employed will need to be treated carefully – consent to a request may be deemed to be an admission that the worker is, for example, inside IR35.
The government has stated that it expects the measures and secondary legislation to come into force approximately a year after Royal Assent, giving employers, and suppliers and users of agency workers, time to prepare for the changes
Manifesto commitment
The new laws deliver on a 2019 Conservative manifesto commitment. In its announcement that millions would get more power over working hours, the government confirmed that zero-hours contracts and other forms of atypical work are "an important part of the UK's flexible labour market; however the government is determined to tackle unfair working practices".
The Workers (Predictable Terms and Conditions) Act intends "to redress the imbalance of power between some employers and workers in atypical work, encouraging workers to begin conversations with their employer about their working patterns".
It is hoped that where requests are accepted, workers will have more predictable terms and conditions that better suit their individual circumstances "leading to higher job satisfaction" for them and "better staff retention" for employers. How effective it will be in practice remains to be seen given the potentially low penalties for non-compliance and where there are no breaches of other laws, such as discrimination.
Acas is producing a new code of practice that will provide guidance on making and handling requests and which "will help workers and businesses understand the law and have constructive discussions around working arrangements that suit them both". The announcement states that the draft code will be available for public consultation in the coming weeks.
Osborne Clarke comment
The Workers (Predictable Terms and Conditions) Act 2023 originated as a private member bill which the government has recently backed. In the absence of an over-arching government Employment Bill this is another example of government support for such bills to push forward specific employment rights. Other recent bills passed into law include a new statutory right for parents to paid neonatal leave, greater protection against redundancy for pregnant women and new parents, a new right to unpaid carers leave and changes to the statutory right to request flexible working.
