Casual workers to get a right to request a more predictable working pattern

Casual workers will be able to request more stable contracts and hours, as a result of the Workers (Predictable Terms and Conditions) Act 2023 having recently been passed. The Act was initially promised in the Government’s Good Work Plan back in 2018, and is now expected to come into force in September 2024.

The Act aims to give more stability to a significant proportion of the workforce who are in insecure or unpredictable work. It will apply, broadly, to:

• workers whose existing working patterns lack predictability in terms of the hours, days or times they work
• workers on fixed-term contracts of 12 months or less (who are able to request a longer fixed-term or conversion of the contract to a permanent contract)

• agency workers (who can make their request either to the agency or the hirer provided they meet certain qualifying conditions

However, the provisions work in a similar way to those in the Flexible Working Regulations in that they only give the right to request a more predictable work pattern or contract, and do not oblige the employer to accept that request. The employer can refuse the request on one or more of (currently) six specified grounds:-

• burden of additional costs
• detrimental effect on ability to meet customer demand
• detrimental impact on the recruitment of staff
• detrimental impact on other aspects of the business
• insufficiency of work during the periods the worker proposes to work; and/or
• planned structural changes.

Workers can only make 2 requests in a 12 month period, and it is likely that regulations will confirm that they cannot make a request until they have at least 26 weeks’ service (which is unlikely to need to be continuous).

The request must contain details of what they are seeking in relation to the predictability of their contract e.g. hours/days of work or length of contract, and also the date that any change should start.

Employers must deal with requests in a reasonable manner and notify the worker of their decision within one month of the request being made. The decision may be to:

• grant the request, in which case the new terms (reflecting the change and, overall, on no less favourable terms and conditions than previously) must be offered within 2 weeks; or
• refuse it on one of the above statutory grounds.

When deciding to refuse a request, employers should consider whether there could be any issue of indirect discrimination arising, if individuals in certain protected groups are disproportionately affected by such refusal. It is always good practice to explain and document the full reasoning behind reliance on one of the statutory grounds for refusal, in order to justify your decision and reduce the likelihood of a successful discrimination claims.

As well as the potential discrimination issues, claims to a Tribunal may be brought as a result of procedural failings by the employer (with possible compensation likely to be limited to 8 weeks’ pay), or as a result of the worker suffering unlawful detriment or dismissal for making the request.

There is some time now to plan for the new right to come into force. Given the variety of working patterns and contracts in the education sector, you may want to consider introducing a policy on how to deal with requests. A new draft ACAS code of practice on making and handling requests, which is due out for consultation this autumn, is likely to assist with this.

Overall, while this legislation does generate the need to carefully consider requests for predictable contracts, and these discussions may create an environment where employers adopt a more co-operative approach to accommodating requests, ultimately, it is only “a right to request” and the employer does have the right to refuse requests on a number of broad grounds. Therefore, it remains to be seen how much the right will, in practice, change the working environment for those with insecure contracts.

If you would like to talk to us about how we can support you in relation to these changes in legislation, then please do contact one of the team at Just People HR