Right to Request More Predictable Working Patterns: 2023 Update

A flexible and dynamic jobs market along with a growing gig economy has led to many people across the country being left in the situation where they are waiting, unable to get on with their lives or look for other work in case of being called up at the last minute for a shift.

Back in 2017 Matthew Taylor’s review of modern working practices and the gig economy recommended that employers should not be able to have one-sided flexibility over their staff as this is unfair and unreasonable. Instead, employees should have the right to request predictable working patterns.

The result was the Workers (Predictable Terms and Conditions) Bill, a private member’s Bill introduced in the UK Parliament in January 2021. The Bill is part of a package of policies that the government is introducing to improve predictable working rights across the country.

It will introduce a statutory right for workers and agency workers to request more predictable terms and conditions of work and it is currently progressing through the Houses of Parliament.

What is Changing?

If passed, the Bill will give a worker, who has had the same employer for a ‘prescribed’ period of time, the right to apply to their employer for a change in terms and conditions where there needs to be more predictability about any part of their work pattern (fixed-term contracts of 12 months or less are presumed to lack predictability).

When is a Worker Eligible to Submit a Request?

There will be a minimum service requirement before a worker has the right to request predictable working; this is expected to be 26 weeks of continuous service.

Agency workers will also have the right to request, provided the agency worker has a worker’s or employment contract with that agency during a period to be specified in the regulations; we expect that this will also be a 26-week period.

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.

Is There a Limit on the Number of Requests?

A maximum of two statutory applications can be made in any 12 months.

What are the Employer’s Obligations?

An employer must deal with an application for a more predictable work pattern “in a reasonable manner” and must notify the worker of their decision within one month.

An employer may only reject an application for 6 specified business reasons, these largely mirror the grounds for refusing a flexible working request and are:

1. Inability to meet customer demand: If the business operates in an industry where demand for goods or services fluctuates significantly, such as retail or hospitality, the employer may argue that it is necessary to have a more flexible workforce to meet customer needs.

2. Adverse impact on productivity: If the business relies on a team-based approach, the employer may argue that fixed patterns of work could negatively affect team dynamics.

3. Inability to reorganize work among existing staff: If the employer cannot redistribute work among existing employees to accommodate the requested pattern of work, they may argue that hiring additional staff to fill the gaps is not feasible.

4. Negative impact on quality: If the requested pattern of work would result in a reduced quality of service or product, the employer may argue that it is not in the best interests of the business.

5. Inability to recruit or retain staff: If the requested pattern of work is not aligned with the business recruitment and retention strategy, the employer may argue that accommodating the request could make it harder to attract and retain staff.

6. Additional costs: If accommodating the requested pattern of work would result in additional costs to the business, such as hiring new staff, providing additional training, or increasing staffing levels, the employer may argue that it is not financially feasible.

It is important to note that the right to request more predictable working patterns is a right to request, not a right to be granted the change. Employers must only consider the request and respond in writing within one month. However, employers are encouraged to be flexible and to work with employees to find a solution that works for both parties.

We will continue to monitor developments on the right to request a more predictable working pattern and keep you informed.

If you are a business owner or employer seeking advice on the proposed new rules ahead of the legislation, HR:4UK is here for you.