Acas has launched a consultation on its draft code of practice on handling requests for a predictable working pattern, ahead of legislation due to come into force next September. The draft code sets out how employers should handle requests for more stable working patterns, or hours, including the practical factors they should consider, how they should communicate their decision, and how any appeals should be handled.
The Workers (Predictable Terms and Conditions) Act, which was a private members bill backed by the government, gives certain workers, agency workers, and employees a new statutory right to request a predictable working pattern. It received Royal Assent on 19 September although it won’t come into force until next year, probably September, so plenty of time for employers to get ready for it.
The draft Code aims to help employers and workers to understand their rights and responsibilities under the new regime which will provide certain employees and workers with a right to request a predictable work pattern and ensure requests are dealt with reasonably. Acas invites comments from interested parties on all aspects of the draft Code by 17 January 2024.
The new law is designed to combat what the government describes as ‘one-sided flexibility’ where workers are often on standby for work that never comes. It is likely to have the greatest impact in sectors where shift patterns vary as rotas change, and where work is temporary or casual in nature. It underwent a lot of change during its journey through parliament with some watering down. A right to reasonable notice of work schedules, and compensation for short notice shift cancellations were both dropped along the way, with the focus instead being on contractual certainty.
The Act will give workers the right to request a change in their contractual terms if two conditions are satisfied. First, there is a lack of predictability in the work they do. Secondly, where the change relates to their ‘working pattern’, i.e. their hours, days, or fixed-term contract period. Two applications may be made in a 12-month period and it is envisaged that new regulations will apply a 26 weeks’ service requirement.
The right will function in a similar way to the right to request flexible working which received Royal Assent in July in that it would be a right to request a change rather than a right to have the change granted. Similarly, the employer would be able to refuse the request for a number of specified reasons similar to those available to employers refusing a flexible working request. However, the Act is wider in scope than the flexible working legislation in that it extends to all workers, not just employees.
So how might this work in practice? Earlier Anne Sammon joined me by video-link to discuss it. I asked her what this might mean for HR:
Anne Sammon: “I suppose if I was sat in HR, I'd want a project plan in terms of who's going to be involved, who are we engaging, how do we get buy in from the business and, actually, to what extent is this even going to impact us as a business because, for some organisations, they won't use this sort of quite precarious labour, whereas others will use it far more frequently and, therefore, are going to have a much greater impact from this type of legislation just in terms of administration of requests.”
Joe Glavina: “There’s an obvious similarity with the flexible working legislation and, as we know, employers refusing requests under that law need to be mindful of the indirect discrimination risk. Do employers face that risk with this legislation?”
Anne Sammon: “I think it's a slightly different picture, although I think there may be groups of employees who are able to show, based on their particular industry, or based on the particular roles that they do, that there is an indirect discrimination element. For example, if we were thinking about people in the healthcare industry, some of those roles that rely on rotas may well be more filled by women than men and therefore there may be potential arguments around indirect sex discrimination that individuals can bring, so I think it's going to be kind of role specific. We don't have the whole statistical basis that we have for indirect sex discrimination claims when it comes to part time workers where, almost, the tribunals will accept at face value the fact that women are more likely than men to work part time and, therefore, that kind of hurdle for bringing a claim has already been fulfilled.”
Joe Glavina: “The Act allows employers to refuse requests for various business-related reasons, just as they do with flexible working requests, so employers who rely on workers having less predictable working arrangements should be able to continue with those arrangements. So, is it a case of just making sure you set up processes for dealing with requests for greater predictability when they come in?”
Anne Sammon: “I think that's absolutely the point and, also, they need to have thought about why they deploy labour in that way. So, my experience is generally where employers are relying on this type of labour, it's because there's a good reason for doing so and so if you've got a good reason, you just need to be able to articulate that so that when a request comes in, you're able to justify why you're declining it.”
Joe Glavina: “Across Europe we already have the EU Directive on Transparent and Predictable Working Conditions and most EU countries have legislation in place for that. So what’s your message to employers with operations in Europe affected by that already?”
Anne Sammon: “So, I think if you're an EU employee, you'd need to be thinking about how that sits across your different jurisdictions. Obviously, it won't take direct effect for UK employees but there is that piece around fairness of application. So, if you've got a large number of employees in multiple jurisdictions, what we quite often see as employers think about whether those policies should be applied more globally than they're required to just from a kind of employee relations perspective.”
Acas’s consultation opened on 25 October and it closes on 17 January. The questions are available to read from the Acas website and you can respond either using the online form or alternatively you can email your response to Acas. We’ve put links to all that information in the transcript of this programme for you.
LINKS
- Link to Acas consultation response form and consultation questions
