What is in the Workers (Predictable Terms and Conditions) Act 2023?

The Workers (Predictable Terms and Conditions) Act 2023 (the Act) was passed on 18^th September 2023. The Act establishes a new statutory entitlement for workers under atypical contracts to seek more predictable terms and conditions of work. This encompasses individuals such as fixed-term workers, agency workers, and those engaged under zero-hour contracts.

These new rights are not due to come into effect immediately, and it is expected that the legislation will not come into force until September 2024.

When can requests be made under this Act?

The right to make a request extends to all workers and employees, who can make a maximum of two applications in any 12-month period. However, the right to make a request will be subject to a minimum service requirement. The length of this minimum service requirement has not been established yet, but the Government press release has indicated that it will likely be 26 weeks.

Workers may make a request under the Act where there is a lack of predictability in any part of their work pattern. This includes:

• the number of days they work;
• days of the week and times during the day they work;
• period for which they are contracted to work.  

What is the process of making a request?

The process for making a request for a predictable working pattern mirrors the existing framework for flexible working requests. In the application, the employee or worker should specify the change they are requesting and the date it is intended to take effect.

Once the application has been made, employers have the responsibility to deal with requests in a reasonable manner and within one month. Additionally, employers should hold a meeting with the worker or employee regarding their application for a predictable working pattern. If the employer makes the decision to accept the predictable working pattern request, the employee or worker should then be issued with a new contract which reflects the changes to their working pattern.

Workers will have a right to request a predictable working pattern rather than an absolute entitlement for such a request to be granted. Therefore, employers may refuse the request for one (or more) of the following specific business-related 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 temporary work agency's, hirer's, or employer's business;
• insufficiency of work during the periods the worker or agency worker proposes to work; or
• planned structural changes.

How can employers manage these requests?

ACAS have published a consultation on a proposed Code of Practice which guides employers in managing requests for predictable working patterns. The Code of Practice outlines best practices to ensure that requests for a predictable working pattern are handled in a reasonable manner, such as the following:

• holding a meeting with the worker to discuss their request before making a decision;
• allowing the worker to be accompanied to such meetings;
• clearly communicating the reasons for rejecting a request; and
• offering an appeal where a request has been rejected.

While this Code of Practice is not legally binding, it will be considered by courts and employment tribunals in relevant cases, and it is a useful framework for employers to ensure they carry out best practices in regards to predictable working requests.

What does this mean for employers?

It's crucial for employers to ensure that they handle requests for predictable working patterns in a reasonable manner. Workers and employees may be able to bring a claim in relation to a procedural failing by their employer, such as where:

• the employers fails to respond to the request; or
• a rejection of a request is for another reason which is not a specific business-related ground.

Employees are also protected against automatic unfair dismissal if they have applied for or intend to apply for a more predictable work pattern under the Act.

Next steps

Once these changes come into effect, our Peace of Mind Team can provide specific advice on the new protections in place and our document audit team can help you draft a policy for making predictable working requests. If you have any questions about the Act or have any other employment related questions, please contact our employment law team by emailing employment@warnergoodman.co.uk or by calling 023 8071 7717.