On 3 February 2023, the government announced its support for the Workers (Predictable Terms and Conditions) Bill (the Bill). The Bill aims to give certain workers and agency workers more certainty by allowing them to make a formal application to change their working pattern.
What does the Bill propose?
If passed, workers and employees will have the right to apply to their employer for a change in terms and conditions of employment if their existing work pattern lacks predictability – either in terms of the hours they work, time they work, or whether they are on a fixed-term contract for less than 12 months. Work pattern as defined by the Bill includes number of working hours, working days, working times and the period for which the worker is contracted.
The purpose of the worker’s application must be to get a more predictable work pattern and the application must specify the change applied for and on what date the proposed change should begin. A worker must have been working with the employer for a set period before they can make the application. Whilst the Bill provides for the period to be set out in later regulations, it is expected to be 26 weeks. As the aim is to support those with unpredictable hours, there would be no requirement for a worker to have worked continuously during this period. Each worker can make up to two requests during any 12-month period.
An employer receiving the application would be required to respond in a reasonable manner and communicate the decision within one month of the date of the application. Whilst the employer would be allowed to reject the request, it could only do so if one or more of the following grounds apply:
- 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; or
- planned structural changes.
There would be a reserved power for the Secretary of State to specify further grounds in regulations. If an employee believes their application has been refused on inappropriate grounds, they can make an application to an employment tribunal. The tribunal could order the employer to reconsider the application or award compensation (maximum to be confirmed).
If the employer approves the application, it must offer the worker a new contract within two weeks of approving the application, with terms and conditions which are not less favourable than the original contract and which reflect the changes applied for.
The Bill would apply in England, Wales and Scotland.
Effect of the Bill
The Bill comes on the back of the 2017 Taylor Review of modern working practices which found that many workers on zero-hour contracts experienced “one-sided flexibility”, meaning they were unable to plan their lives in case they were called up for a last-minute shift. The proposed change would give workers a chance to have guaranteed hours that work for them. A CIPD report on zero-hour contracts estimated there were around 1.3 million workers on zero-hours contracts in the spring of 2021, so the Bill is expected to be welcomed by many if it becomes law.
The Bill adds to the list of private members’ bills which the government has recently supported to implement protections which were to be enacted in an Employment Bill. These include creating a day one right to request flexible working, offering pregnant women further protection against redundancy and supporting parents of babies who need neonatal care. These policies are said to “increase workforce participation, protect vulnerable workers and level the playing field, ensuring unscrupulous businesses don’t have a competitive advantage”.