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October 26, 2023
What is your daily routine? Weekly routine? Do you even have a routine?
ACAS has started a public consultation on what should be included in its upcoming statutory Code of Practise on handling requests from workers wanting more predictable working patterns. Ultimately, employers will wish to handle requests for predictable working patterns in a way that supports staff to work efficiently and effectively. What do you think should be included in the ACAS Code?
Whilst not legally binding, the upcoming Code will be taken into account by employment judges hearing complaints on this topic and will sit alongside new guidance.
The Workers (Predictable Terms & Conditions) Act 2023 became law in September and is expected to come into force next autumn. The new rules come against a backdrop of flexible and hybrid working such as zero hours and flexible contracts and give workers the right to request more predictable working patterns if their current pattern is unpredictable. Similar rules will apply to agency workers.
Any request must be in writing and made up to twice in any rolling 12 month period. That includes workers on fixed term arrangements of 12 months or less. Employers will risk facing compensation claims from aggrieved staff if they don’t handle applications reasonably, or if they fail to make appropriate offers. It is hoped that the Code will provide guidance on what is to be regarded as reasonable.
Unpredictable work patterns may be made up hours or days of the week worked or even the duration of a contract and workers must be clear when making the request that it is an application under the rules.
How should employers respond to requests? Even utilising learning technologies, how much can work flows be predicted? Employers must deal with requests in a reasonable manner to avoid falling foul of the rules. The starting point is to approach requests with an open mind allowing the applicant their opportunity to explain their suggested pattern. Employers will also wish to avoid discrimination.
Offering at least one opportunity to meet to discuss the application is also likely to be regarded as reasonable as well as allowing them to be accompanied by a colleague or trade union representative.
Employers may reject requests for more predictable working patterns if work isn’t available when the worker would prefer to do it or if it adds a burden of costs or adversely impacts customer demand, recruitment or where there are planned structural changes. If appropriate, some information and explanation of the decision could add extra reasonableness.
Employers will have a choice whether or not to grant or reject applications and must do so within a “decision period” of one month beginning with the date the application is made. If the proposal is accepted then, within two weeks of granting the application, make an offer of new and not less favourable terms.
A proactive appeals process may be reasonable if an application for more predictable hours has been rejected.
This note is not intended as full advice and specific advice should be taken in any given scenario. For help keeping the right side of employment laws and resolving workplace issues and employment disputes please get in touch for further information or contact Joan Pettingill, Partner, Employment Law gunnercooke LLP joan.pettingill@gunnercooke.com M.07398 334777
