Right To Request A Predictable Work Pattern Explained

sarah ryan
Sarah RyanAccount Manager @ Lawhive & Non-Practising Solicitor
Updated on 25th October 2023

In September 2023, the Workers (Predictable Terms and Conditions) Bill achieved Royal Assent. This means that the King has formally agreed to make the bill into an Act of Parliament which is slated to come into force in autumn of 2024.

right-to-request-predictable-working

But what is this new act all about, and how might it impact you as either a worker or an employee? Let’s take a look.

What is the Workers (Predictable Terms and Conditions) Act?

The Workers (Predictable Terms and Conditions) Act gives employees the right to ask for a more predictable working pattern if theirs is currently unpredictable.

It was brought forward by Baroness Anderson and Blackpool South MP Scott Benton. The goal of the Act is to tackle unfair working practices and encourage employees to start conversations around their working patterns with employers.

What problem is the Act addressing?

Employees on 'atypical contracts' (like zero hour contracts) often find their work schedules are unpredictable. Sometimes, their shifts might be cancelled and at other times they might be asked to do extra hours at short notice.

The unpredictable nature of these kinds of work schedules can make planning and organising your life outside of work difficult, which is kind of unfair when you think about it!

The Act aims to address this by giving workers the right to ask their employers for a more predictable working pattern.

Who can request a predictable working pattern?

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The right to make this type of request will be beneficial to casual workers, zero hours workers, or workers employed on short fixed-term contracts.

Workers

Employees can apply for a change in the terms and conditions of their employment if there is a lack of predictability in their work pattern and they are looking to establish a more predictable working pattern.

A working pattern could be seen to lack predictability if there is little certainty around:

  • The hours they work;

  • The days of the week they work;

  • The times they work;

  • The period for which they are contracted

If an employee is on a fixed-term contract for 12 months or less, they can make a predictable working pattern request to extend the full time contract or convert it into a permanent contract.

As the bill is still being finalised, the finer points around this remain to be seen. However, it is expected that the legislation will require an employee to have at least 26 weeks’ service (non-continuous) in order to make a request. Further, a worker can only make two predictable working pattern requests in a 12 month period.

Agency Workers

Agency workers will be able to request predictable working to the temporary work agency under similar rules.

Agency workers also have the right to apply to the ‘end user business’ for a more predictable working schedule if they have worked for that business in the same role for 12 continuous calendar weeks and they are still in that role when they apply.

If they do this, they should also be engaged on terms and conditions no less favourable than employees carrying out broadly comparable work.

How to make a request for a predictable working pattern

Provided the employee meets the eligible criteria, they can apply in writing for a predictable work pattern. This must specify:

  • That it is an application for a more predictable working pattern;

  • The change applied for;

  • That date on which it the change should start.

Until the bill comes into force, however, this may be subject to change or additional requirements.

How should employers respond to predictable working pattern requests?

employer-response-to-predictable-working-schedule-request

If an employee makes a request to change their working pattern to a more predictable one, their employer has to respond with a decision within one month. However, they do not have to agree to a request.

When can employers refuse a predictable working request?

An employer can refuse a predictable working request for one or more of these specific reasons:

  • The burden of additional costs (If it would cost them a lot more money);

  • Detrimental effect on ability to meet customer demand (If it would make it it really hard to serve customers);

  • Detrimental impact on the recruitment of staff (If it would make it tough for them to hire new workers);

  • Detrimental impact on other aspects of the employer’s business (If it would cause disruption or negatively impact other parts of the business);

  • Insufficiency of work during the periods the worker proposes to work (There just isn’t enough work to give you on the schedule the worker asks for);

  • Planned structural changes (If the business is planning some big changes to how it is run).

How can employers prepare for predictable working requests?

If a company has lots of workers on unpredictable schedules, it’s important to think ahead and come up with a plan for handling requests, any risks that may arise and schedule changes, including:

Creating & Implementing A Policy

First of all, employers need to understand the new rule and its implications and create a policy to deal with these requests that covers the whole process including:

  1. Arranging a meeting with the worker;

  2. Coming to a decision;

  3. Communicating the decision to the worker in writing;

  4. Dealing with a claim related to this kind of request.

Assessing Discrimination Risk

It’s also important to consider if there are any groups with protected characteristics that usually have jobs with unpredictable schedules (such as women or disabled people) and have a plan in place of how to fairly deal with these requests. Without doing this, there is a real risk that if an employer repeatedly rejects predictable working requests from certain groups of people, they could be opening themselves up to indirect discrimination claims.

Dealing with Agencies

If businesses use temp agencies to hire workers, they should give some thought to how they handle these types of requests with agencies, including establishing who is responsible if things go wrong.

Just like the Flexible Working Act, if an employer messes up the process when dealing with a request for a predictable work schedule, workers can bring a claim based on procedural failings. A worker can also claim in an Employment Tribunal that the refusal request is based on incorrect facts, but they can't argue against the reasons the employer gave for saying 'no.'

If a worker wins their complaint, the most they can get in compensation depends on how much they earn in a week. We don't know the exact number yet, but it's likely to be similar to the rules for flexible working, where it's capped at eight weeks' pay.

If a worker asks for a predictable work schedule or takes legal action because of it, the employer can't treat them badly because of it. It's also against the law to fire someone just for these reasons.

When will the Act come into force?

There is no set date yet for when the Act will come into effect, but it’s expected to be around September 2024 to allow for employers to prepare for the changes.

A number of things need to happen before, including the production of a new Code of Practice from Acas to help workers and businesses understand the new law and provide more guidance on how requests should be made and considered.

It is wise that, once that Act comes into force, any employee looking to start a grievance procedure related to the Act should seek help from a specialist employment solicitor.

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