The Right to Request Predictable Terms and Conditions – Guest Article by Ian Holloway

Another piece of employment law legislation has come into force.  There are 4 important considerations:

1. It updates the Employment Rights Act 1996 to insert a statutory right to request. The right to request does not mean that the right is granted
2. As it updates the 1996 Act, this only affects employees and workers who have contracts written under this legislation. If the contract is written under the Northern Ireland 1996 Order, this right to request does not apply
3. This is a Private Member’s Act and makes changes to another Private Member’s Act (the Employment Relations (Flexible Working) Act 2023) – that also had UK Government support
4. It is not in force yet!

The Workers (Predictable Terms and Conditions) Act 2023 was supported by the UK Government with the headline:

Law will combat ‘one-sided flexibility’, where workers are often on standby for work that never comes

This ‘one-sided flexibility’ was referring to workers on zero-hour contracts, however, the legislation is wider than that.  Note that secondary legislation in the form of Regulations will fill in the details as well as advise when the law is effective.

The Right to Request

Workers have the right to time off in many instances such as:

• Time off for public duties (magistrates etc)
• Unpaid parental leave
• Time off for training and study (not agency workers), and
• Time off for family and dependants

These are different statutory entitlements.  The right to request to work flexibly or the upcoming right to request variations to their terms and conditions of employment are not the same as a right to have.

The 2023 Act allows a worker (employee and agency worker) to request changes where:

• Any part of their conditions contain a ‘lack of predictability’. That may be hours, days of the week or anything else that may come in future Regulations
• The request for changes will change the worker’s own work pattern
• The purpose of the request is to give the worker more predictability

What a worker deems as predictability could be very wide indeed.  For example, a worker with a fixed-term contract of 12 months or less is expressly deemed in the Act to be unpredictable for the worker.

The Eligibility Criteria

Regulations may change this; however, the Act allows a worker to make a request for more predictable working conditions where they have been employed by the same employer ‘at some point’ during the month before the application is submitted.

The Restrictions

The 2023 Act does not say anything about a service criterion.  The February 2023 Press Release, however, says that Regulations will set out a service criterion, likely to be 26 weeks.  This aligns with the 26-week service criterion before a worker can make a request to work flexibly.

The worker is required to submit a request for predictability, stating that this is the reason for the request and outlining the proposed changes and effective date.

The worker has a statutory right to submit two requests to their employer in any 12-month period.  This has meant some tinkering with the restrictions on requests in the Employment Relations (Flexible Working) Act 2023 and means the worker cannot make two requests for more predictable terms and conditions and two requests to work flexibly in a 12-month period.  For requests, the worker is limited to two (for flexible working and/or for predictable conditions).

Further, in either case, the worker cannot make an application while an earlier application is being considered.

The Employer’s Obligations

This is about the right to request, not a right to automatically have the request granted.  The employer still has an obligation for the following:

• Dealing with requests/applications in a ‘reasonable manner’ – there is no definition of reasonable!
• Advise the worker on the outcome of the employer’s consideration within the ‘decision period’ (one month starting with the date of the application)

The request for predictability can ONLY be rejected on the following grounds:

• Additional costs
• An adverse effect on the ability to meet customer demand
• An adverse effect on future recruitment
• An adverse effect on ‘other aspects’ of the business
• Lack of work in the period prosed in the application
• Future planned changes anyway, or
• Other! To be defined in later Regulations

Perhaps surprisingly, even if the worker has made a request (an application) and then leaves employment, if the employer is considering this (within the ‘decision period’), there is still an ongoing duty to consider this.  Providing the termination of employment was not conduct-related or regarding their application, the employer must offer a new contract if they accept the worker’s request for predictability.

Of course there is the right to appeal to the employer and the employer will have to justify their reasons for rejecting the request.  The ultimate appeal is with the Employment Tribunal.

In Summary

For employers in Great Britain, there are two pieces of employment legislation that are important and will involve changes to policies and procedures:

1. The Employment Relations (Flexible Working) Act 2023 and
2. The Workers (Predictable Terms and Conditions) Act 2023

They also impose obligations on the employer to CONSIDER applications, be REASONABLE and RESPOND within timelines. The UK Government’s admirable emphasis is on protecting and enhancing the employment conditions for workers, making them flexible and adapting to their work/life balance.

Importantly, both pieces of legislation give significant statutory rights for workers to REQUEST changes.  A request is not the same as being granted something.  Maybe, employers are best placed to look at their workforce and working patterns now before legislation imposes this on them.

These laws are not in force – YET!

 

Ian has been in the payroll profession for over 30 years, processing payrolls from all sectors, large and small. He moved from hands-on exposure in 2011 to becoming involved in educating the profession. His wide-ranging experience and up-to-date knowledge ensured he was able to impart this information to UK professionals through course material, social media, newsletters and face-to-face presentations.

Today Ian combines both these and is involved with a vital aspect of the payroll environment, that of working with the software that actually does a lot of the hard work for the profession.

Ian approaches education and communication very much from the perspective of how this will impact the software, the employer and the worker. So, whilst the legislation is vital, compliance and effective communication are paramount.

Connect with Ian on LinkedIn.