27 April 2023
There will be a new legal right for zero-hour and agency workers to request a more predictable working pattern. This is reflected in the Workers (Predictable Terms and Conditions) Bill, a Private Member’s Bill which appears likely to be passed by parliament without opposition. The bill will amend the Employment Rights Act 1996.
The bill is currently at its third reading at the house of commons, and the new law is currently expected to come into play in early 2024.
The bill intends to deal with the issue of ‘one-sided flexibility’ – where a worker has no guarantee of work but is expected to be available at very short notice when required. This leads to unpredictable working hours and no secure income. The issue of ‘one-sided flexibility’ was raised in the Good Work Plan in 2018. A government consultation followed in 2019 and it was later announced that new legislation would be introduced to tackle these issues.
What is it?
In summary, zero-hour, or agency workers with at least 26 weeks’ service and unpredictable working hours will be entitled to formally request a predictable working pattern. They’ll be able to make two applications a year and employers will need to deal with requests reasonably and within one month.
Additionally, workers on fixed term contracts of less than 12 months may request a more permanent contract. This is because contracts shorter than a year are considered less predictable.
Agency workers will have the right to apply to the temporary work agency with which they have a contract or to the hirer under whose supervision and direction they are working.
However, employers will be able to turn down requests for specific reasons and the proposed statutory framework will be based on the flexible working regime. This means employers in industries that rely on unpredictable working arrangements are still likely to be able to do so.
What will the impact be on employers?
This change could have a widescale impact on start-ups, retail, hospitality, the care sector, and any other industries that have peaks and troughs and call on workers at short notice.
It could create a huge administrative burden on employers in those industries who may soon be inundated with applications for predictable work.
Employers will need to deal with requests fairly, applying the law appropriately and be careful not to get caught out by discrimination law. For example, there could be workers or employees that require greater certainty in their working pattern because of childcare responsibilities or a disability.
What are the consequences for employers?
A worker or employee who feels their request was not dealt with fairly could pursue the following employment tribunal claims:
- failure to deal with their statutory request fairly – compensation of up to eight weeks’ pay can be awarded under the flexible working regime;
- unlawful detriment if they suffer a detriment (short of dismissal) because they made or proposed to make an application for predictable working. A tribunal can award compensation which is just and equitable in the circumstances; and
- automatic unfair dismissal if they were dismissed because they made a predictable working request although this right will only apply to employees. There is no minimum required service to pursue an automatic unfair dismissal claim and compensation is usually unlimited.
How can employers prepare?
- Review the makeup of your workforce to identify how staff are engaged and whether zero-hour or agency workers who are regularly called upon could instead be engaged as employees or workers on a more permanent basis. This could pre-empt applications for predictable working and provide you with a more effective workforce.
- Prepare checklists on business requirement for roles and build this into your recruitment processes. If zero-hour or agency workers are necessary – assess your requirements alongside the grounds on which you can refuse predictable working patterns and make a note of those grounds that apply. This will enable you to front load your requirements and be better prepared for a likely influx of requests.
- Once new legislation is enacted – implement new policies and procedures setting out your workers’ rights and the processes you will follow.
If you are an employer and you would like support with preparing for this new right or advice on how it could impact your workforce, please contact Jennifer Mansoor.