The Right to Request a Predictable Working Pattern

As mentioned in previous blogs, several employment law changes are coming this Autumn. One key change is the extension of flexible working rights to include the right for workers and employees to request a predictable working pattern. This new law will come into force in September 2024.

In this blog, we will explore what these changes mean for employers, what adjustments employers will need to adopt to support the changes, and who it affects within the business.

Flexible Contracts and Their Benefits

Flexible contracts, such as zero-hour contracts and agency workers, can benefit both organisations and individuals by meeting the needs of both parties. From an employer’s perspective, these contracts can help respond to fluctuating demands and provide individuals with the flexibility they need to balance their work and home lives.

The Workers (Predictable Terms and Conditions) Act 2023

The Workers (Predictable Terms and Conditions) Act 2023 is UK legislation designed to give workers more predictable working terms and conditions. This Act allows workers to request more predictable working hours and conditions if their current terms are deemed too unpredictable or insecure.

When Can a Worker Submit a Request?

Workers, agency workers, and employees who work for an employer under any type of contract – such as zero-hour contracts, casual contracts, and fixed-term contracts of 12 months or less – are eligible to apply if they have worked for the same employer for 26 weeks, with a minimum of working at least once a month during that period.

A worker can request a more predictable working pattern when:

• Their working pattern lacks predictability
• The requested change relates to their working pattern
• The purpose of the request is to achieve a more predictable working pattern

How Should a Worker Apply?

Applications should be made in writing by a worker or employee, stating that it is a request for a more predictable working pattern. The application should also include the proposed date for the change to take effect.

A worker or employee can make up to two applications in a 12-month period; however, these cannot be made simultaneously.

What Should an Employer Do When They Receive a Request?

The statutory time for dealing with a request is one month. Employers should ensure that every request is handled reasonably and should include:

• Consideration of the worker’s current working pattern
• Assessment of the impact of the requested change on both the employer and the worker, including the potential benefits and drawbacks of either accepting or rejecting the request

As with flexible working requests, an employer must have a genuine business reason to reject the request, and it should be at least one of the following reasons:

• The burden of additional costs
• A detrimental effect on the ability to meet customer demand
• A detrimental effect on recruitment of staff
• A detrimental effect on other aspects of the business
• Insufficient work available for the period the worker proposes to work
• Planned structural changes to the business

In handling a request, employers must not unlawfully discriminate against a worker based on any protected characteristic set out in the Equality Act 2010, including:

• Age
• Disability
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity
• Race
• Religion or belief
• Sex
• Sexual orientation

It is good practice to carefully consider any requests and explore alternative options to achieve a compromise if you cannot agree to the initially suggested work pattern. If a request is refused, employers should ensure that the reasons are clearly communicated and, if possible, have good evidence of why it won’t work, so the worker can see it is a fair decision.

Summary

The right to request a predictable working pattern gives eligible workers the right to ask for a predictable working pattern; however, it does not provide a legal right to a predictable working pattern. Organisations that have workers or employees working in unpredictable patterns will need to implement procedures and policies for those who wish to make a request.

ACAS has drafted a code of practice that will serve as employers’ blueprint. The draft has been in consultation since October 2023 and should be finalised and published in time for the legislation to become law in September 2024.

MAD-HR can support you in drafting your policy and process to ensure compliance and readiness for any requests that may be submitted.