By Royal Assent!

The Workers (Predictable Terms and Conditions) Bill has received Royal Assent!

On 18 September 2023, the Workers (Predictable Terms and Conditions) Bill received Royal Assent, becoming the Workers (Predictable Terms and Conditions) Act 2023 (Predictable Terms Act).

The new legislation should come into force in approximately one year’s time – with a final date to be announced.

The aim of the Predictable Terms Act is to give certain workers and agency workers the right to make a formal application requesting changes to their terms and conditions giving a more predictable work pattern.

It is expected that it will mainly be used by agency workers and those on zero hours contracts.

Workers will be permitted to make a maximum of two applications during any 12-month period. No application to vary terms and conditions can be made if another application to vary terms and conditions is proceeding.

ACAS is currently producing a new Code of Practice that is aimed at providing clear guidance on making and handling requests.

Circumstances in which a predictable working pattern request can be made

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

• 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;
• The change relates to the worker’s work pattern; and
• The worker’s purpose in applying for the change is to get a more predictable work pattern.

Work pattern

Working patterns can relate to:

• The number of hours;
• The days of the week or times of the day; or
• The period they are contracted to work.

Where a worker’s contract is for a fixed term of 12 months or less there is a presumption that it is unpredictable.  In these circumstances, any application for a longer fixed term or the removal of the provision restricting the duration of the contract will be classed as an application under the Predictable Terms Act.

Form of application

A worker’s application must state:

• that it is an application for a predictable work pattern;
• identify the nature of the change applied for; and
• Say what date the requested change will run from.

Length of service requirement

Although the exact details of any qualifying period are yet to be announced, it is likely that only employees with at least 26 weeks’ continuous service with the same employer will qualify for the right the make an application.

How should an employer deal with a request?

An employer who receives an application for a predictable work pattern is required to:

• Deal with the application in a reasonable manner;
• Give the worker a decision within one month of receiving the application; and
• Only reject the application for one or more of the following reasons:
• • theburden of additional costs;
  • a detrimental effect on ability to meet customer demand;
  • a detrimental impact on the recruitment of staff;
  • a detrimental impact on other aspects of the employer’s business;
  • insufficiency of work during the periods the worker proposes to work; and
  • planned structural changes;

Complaints to an Employment Tribunal

A worker or agency worker who has made a qualifying application for more predictable working patterns can make a claim in an Employment Tribunal if:

• The application was not dealt with in a reasonable manner;
• The worker or agency worker did not receive a decision within one month;
• The application was rejected for a reason that is not permitted;
• A decision to reject the application was based on incorrect facts; or
• The worker was not offered a new contract following acceptance of the application.

Subject to the rules on ACAS early conciliation, a claim must be presented to a Tribunal within three months of the date on which the worker became entitled to bring the claim (unless a Tribunal uses its discretion to extend the time limit).

Remedies

Where a worker wins their claim the Tribunal can make either or both of the following:

• An order for reconsideration of the application; and/or
• An award of compensation (of an amount yet to be specified).

Unlawful detriment and automatic unfair dismissal

Workers will be given the right not to suffer a detriment (and to be awarded compensation) when:

• They have made an application for a predictable work pattern.
• They have brought or threatened proceedings in relation to an application for a predictable work pattern.

Also, it will be automatically unfair to dismiss an employee if the reason, or principal reason, for dismissal is one of the following:

• The employee made, or proposed to make, an application for a predictable work pattern.
• They have brought or threatened proceedings in relation to an application for a predictable work pattern.

Selection for redundancy on the above grounds would also be automatically unfair.

There would be no qualifying period of service for an employee to bring a claim for automatic unfair dismissal on the above grounds.

Comment

This will be a big change for employment businesses and organisations who regularly make use of agency workers, casual workers and zero hour contract workers.

This is especially relevant given how many so-called “self-employed” individuals in the gig economy have been re-categorised as workers by recent shifts in case law.

It will be interesting to see how much of an impact this has on the employment law landscape.

It is also worth noting that this is linked to other forthcoming changes to employment rights.  From summer 2024, (an exact date is yet to be set) employees will be entitled to make an application for flexible working from day one of employment (rather than the current requirement for 26 weeks’ service).

If your business will be affected by the proposed changes and you would like any further information prior to its implementation, please give Michael Nadin a call on 01604 609 566 by email here