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The Workers (Predictable Terms and Conditions) Act has been passed

27 September 2023

The Workers (Predictable Terms and Conditions) Act, which gives certain workers, agency workers and employees a new statutory right to request a predictable working pattern, received Royal Assent on 19 September – although it seems that it won’t actually come into force for another year.

We have previously written in detail about the proposals, and these have not been changed significantly during the Act’s passage through Parliament.

The government’s press release of 19 September was headlined as “Millions get more power over working hours thanks to new law”. It is important to remember that this is a new right to request more predictable hours only, not a right to have an automatic change. The new law is also not due to come into effect immediately. Some important details will be contained in separate regulations, including the length of service required to make a request (expected to be 26 weeks), the form of applications and the maximum amount of compensation for breach of the rules. The press release also says that Acas has been asked to prepare a new statutory Code of Practice to help workers and businesses understand the law and to provide guidance on how requests should be made and considered, and they will launch a public consultation on a draft Code this autumn.

As we noted previously, the Act is likely to have the greatest impact on industries where shift patterns vary as rotas change, and where work is very casual in nature. However, the definition of “lack of predictability” is wide and appears to capture anyone whose hours or days vary in a way which provides them with an absence of certainty.

Although the new law is targeted at zero hours contracts and other atypical work, it is possible that other contractual arrangements will be caught by the provisions. For example, a contract which specifies core hours of work but says they can be varied by management as required, or even the standard requirement to work such hours as are required to fulfil the duties of the role, are arguably a work pattern with a lack of predictability as to hours of work. Employees with these types of contracts are probably less likely to request a change, and the employer always has the option to refuse for one of the specified reasons (with probably limited compensation for breach). Nevertheless, it will be important for all employers to put procedures in place to ensure they deal with any requests reasonably and within the required timescale of one month.

There is also some overlap with the right to request flexible working. The new Employment Relations (Flexible Working) Act 2023 received Royal Assent in July, and will make some relatively limited changes to the existing regime. The broad list of reasons for refusing a request for flexible working remains unchanged and has largely been duplicated in the Act on predictable work, meaning it is relatively easy for employers to find a reason that can be relied on. Requests for flexible work will often involve possible discrimination issues as well, which means the employer needs to do more before refusing a request – such as indirect sex discrimination where a woman is making a request due to caring responsibilities, or disability discrimination if the request is made to help accommodate a disability. Requests for more predictable hours are less likely to involve potential discrimination issues, but that depends on the reason for the request and so is still possible in some cases.

It also seems that a request for flexible working could fall within the predictable work regime as well, if the purpose of the requested change is to “get a more predictable work pattern”. If so, the flexible working request may count towards the maximum of two predictable working requests that can be made within 12 months, even if that is not what the employee intended. In addition, it may be unclear which procedure the employer should follow. There are various differences, most notably the shorter timescale for providing a decision on a request for predictable working – one month rather than two months under the new flexible working rules.

The press release says that the government expects the Act and regulations to come into force approximately a year after Royal Assent, to give employers time to prepare for the changes. This would mean late rather than early 2024. Hopefully the draft regulations and new Acas Code will be published relatively quickly, so that employers can implement new procedures to ensure compliance.

Employers with operations throughout the EU are already having to get to grips with the recent EU Directive on Transparent and Predictable Working Conditions, which contains similar requirements. As explained in our article Labour party proposals to strengthen rights and protections – spotlight on zero-hour contracts, a future Labour government would seek to go even further when regulating in this area by banning zero-hour contracts, giving anyone working regular hours for 12 weeks or more the right to a regular contract, and ensuring all workers get reasonable notice of any change in shifts. Although the new Act will (eventually) introduce some significant changes, this is unlikely to be the end of the story on the right to predictable work.

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