This new law which is expected to come into force in September 2024 gives workers the right to request more predictable hours, not a right to have them changed. Details will be contained in separate regulations, and ACAS has published a draft Code of Practice which will be finalised following a consultation period.
Eligible Workers
It Is likely that those workers eligible to make a request will be broad; the definition of “lack of predictability” is wide and appears to capture anyone whose hours or days vary in a way which provides them with an absence of certainty, including anyone on a fixed term contract of less than 12 months.
The law is targeted mainly at zero hours contracts and other atypical work but may also apply to those who have the ‘catch all’ clause to work ‘such additional hours as are required by management’. It would not however apply to someone working on a fixed ongoing shift pattern as this is predictable.
There will be a minimum service length requirement, although not yet specified, but expected to be 26 weeks. Agency workers will also have to meet qualifying conditions.
How will workers exercise their rights?
The right works in a similar way to the right to request flexible working. An employer can reject a request on one of the following six grounds (which are very similar to those that apply when turning down flexible working requests):
- the 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 employer’s business
- insufficiency of work during the periods the worker proposes to work
- planned structural changes
Whilst it will be easy for employers to turn down requests on the basis of these reasons, their biggest risk (as with flexible working) is that they open themselves up to indirect discrimination claims.
The employer/agency must deal with the application in a reasonable manner and has a month to conclude the process. Employers will, therefore, need to put procedures in place to ensure they deal with any requests within a tight timescale.
It’s also possible that a worker who makes a request for flexible working may actually be deemed to have made a request under this scheme, if the reason is to obtain a more predictable work pattern. If it does, it will count towards the maximum number of applications that can be made (see below). And, if the employer doesn’t realise this and doesn’t resolve the request within a month (because, it assumes it has longer to do this under the flexible working regime), it will breach the regulations.
Workers can make a maximum of two applications in any 12-month period. Their application must be in writing, state that it is a statutory predictable working application, and specify the change applied for and the date on which it is proposed it should take effect.
An agency worker can apply to the agency and/or the hirer but each request will count towards the maximum number allowed.
If an employer fails to follow the requirements the worker will be able to bring a claim in the Employment Tribunal. A tribunal can order the employer/agency to reconsider the application or award compensation.
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