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A new right to predictable Ts and Cs

The Workers (Predictable Terms and Conditions) Bill introduces a statutory right for workers and agency workers to request predictable terms and conditions of work. It is currently progressing through the Houses of Parliament, so its content may be subject to change.

Background

The Taylor Review of Modern Workplaces recommended that the government take steps to ensure that flexibility does not benefit the employer at the unreasonable expense of the worker, and that flexibility is genuinely a mutually beneficial arrangement. It found that many vulnerable workers, lacking statutory protection, often felt that, by expressing legitimate views about their working conditions or making reasonable requests for greater equality and predictability, risked irritating their employer and being denied future work as a result.

When is a worker eligible to submit a request?

A worker may request a more predictable working pattern from their employer if there is a 'lack of predictability' in their current work pattern, which is likely to apply to casual workers and those on annualised contracts. There will be a minimum service requirement before a worker becomes eligible to make a request; this is expected to be 26 weeks’ continuous service. Agency workers are likely to have similar rights.

What are the employer’s obligations?

An employer (including a temporary work agency but also a hiring business, as the case may be) must deal with an application for a predictable work pattern 'in a reasonable manner' and must notify the worker of its decision within one month. An employer may only reject an application for a reason on a list of specified grounds, which largely mirror the grounds for refusing a flexible working request (for example, that the requested change would have a detrimental impact on the ability to meet customer demand or there is insufficient of work during the periods that the worker proposes).

A business can be liable for procedural failings, including a failure to deal with an application in a reasonable manner, or rejecting an application based on incorrect facts. A tribunal can order the employer to reconsider an application or make an award of compensation up to a likely maximum of eight weeks’ pay, subject to the statutory cap (£643 per week from 6th April).

Limit on the number of requests

An individual will be permitted to make a maximum of two statutory applications in any 12-month period under either the new statutory procedure for requesting a more predictable work pattern or under the existing flexible working procedure or both. For example, they will be permitted to make two requests for a more predictable work pattern or two requests under the flexible working regime; alternatively, if a qualifying employee has made a flexible working request, they are only permitted to make one request for a more predictable work pattern within the same 12-month period (and vice versa).

Greater protection from detriment and dismissal

The bill gives employees protection from unfair dismissal and both employees and workers protection from being subjected to a detriment where they have made or propose to make an application for a more predictable work pattern. In both cases, there is no qualifying service requirement; any dismissal for this reason will be considered automatically unfair.

Discrimination risk

Even when a business complies with the statutory regime for requesting a more predictable work pattern, it should remain alive to the risk of discrimination claims, which may require the business to consider a request from an ineligible worker or to go further to accommodate a request. For example, where a request is made for childcare reasons, the applicant may have a claim of indirect sex discrimination if the request is not granted, even if the employer can cite one of the statutory grounds for refusal. Similarly, requests may be made for religious reasons (for example, a request for more predictability around festival dates and fasting requirements) or because the worker is disabled.

Remember

If, as seems likely, this becomes law, casual, temporary and agency workers will have new rights to ask for a more predictable working pattern, but not a right to a predictable working pattern. Provided any requests are turned down in line with the correct procedure, which mirrors the flexible working requests procedure, organisations should be able to defeat any claims.

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