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The Worker (Predictable Terms and Conditions) Act 2023 (“the Act”) amends the Employment Rights Act 1996 to insert a new right for workers and agency workers to request a predictable working pattern in certain circumstances.

The Act is expected to come into force in September 2024 and it aims to address “one-sided flexibility” where a worker has no guarantee of work but is expected to be available at very short notice when required. The Act will give a worker the statutory right to request a predictable working pattern.

When can a worker make a right to request predictable working pattern?

A worker may apply to their employer for a change in terms and conditions of employment if all of the following circumstances apply:

1. There is a lack of predictability in relation to the work that the worker does for the employer, as regards any part of the worker’s work pattern.
2. The change relates to the worker’s work pattern.
3. The worker’s purpose in applying for the change is to get a more predictable work pattern.

Although there is no definition of ‘predictability’ (except in relation to fixed-term contracts), it is likely intended to cover atypical workers such as casual workers or workers on annualised contracts.

In order to be eligible to make a request, the employee or worker must meet the minimum service requirement. The length of this minimum service requirement has not yet been established, but it is expected to be for a minimum of 26 weeks (although continuous working is not required during that 26-week period). The legislation will also apply to agency workers, who can submit the request to either their agency or the hiring company.

A maximum of two applications can be made within any 12-month period. The process for making a request is similar to the existing process for flexible working requests, in which the employee or worker should specify the requested change and the date from which it is intended to take effect.

What about fixed term contracts?

The Act does not define ‘predictability,’ however, it does specify that fixed term contracts of 12 months or less will be presumed to lack predictability. As such, anyone on a contract of this nature will have a right to request a more predictable working pattern. This could include a request for a permanent working arrangement or a request to extend their contract.

The implication for employers is that the correct process will need to be followed to determine the request and it can only be refused for one of the specified reasons in the Act. Employers will need to address why the fixed term contract will not be renewed and ensure the request is dealt with reasonably in line with the ACAS Code.

Employers will therefore need to consider termination of fixed term contracts carefully if the worker has made a request under the Act as workers will be able to bring a claim for procedural failings made by the employer when considering their request. Workers will also have the right to bring a claim if they believe they have suffered a detriment due to making a request under the Act.

How should an employer deal with a request?

Employers must deal with requests in a reasonable manner and within one month from the date on which the application is made (“the decision period”).

The only grounds on which an employer may reject the application are as follows:

• Burden of additional costs;
• Detrimental effect on ability to meet customer demand;
• Detrimental impact on the recruitment of staff;
• Detrimental impact on other aspects of the employer’s business;
• Insufficiency of work during the periods the worker proposes to work;
• Planned structural changes; and
• Such other grounds as may be specified in regulations.

ACAS have published a draft consultation on a proposed Code of Practice with best practice in managing requests for predictable working patterns. The guidance includes recommendations such as arranging a meeting to discuss a request, allowing the worker to be accompanied to such meetings, clearly communicating the decision about a request, and offering an appeal where the request has been rejected. The process seems similar to making a flexible working request.

The Act places an increased burden on employers to consider workers requests for a predictable work pattern. By providing a process for stabilising working arrangements for workers, this legislation should in turn lead to higher job satisfaction and a greater retention of staff.

If you would like to discuss any aspect of this Act please contact a member of the Employment team.

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