The new Workers (Predictable Terms and Conditions) Act 2023 (WPT 2023) aims to address the challenges faced by workers in industries characterized by irregular and uncertain work patterns.
New rights for worker and agency workers
The Act will introduce the right for both workers and agency workers to request a predictable working pattern from September 2024. Workers will only be eligible if their working pattern is unpredictable, though there is a presumption of unpredictability for workers on fixed term contracts of 12 months or shorter. Workers and agency workers will have broadly parallel rights, but the latter can apply not only to their agency but also to the hirer they work for.
This will not be a “day one” right. A qualifying period of work - likely 26 weeks - will be specified under regulations. Where an agency worker intends to apply to a hirer, the Act also requires they work for at least 12 continuous weeks with the hirer and they must continue to work in the same role when they submit the application.
Both workers and agency workers will be able to make up to two statutory applications for various requests, including predictable work pattern changes, within a 12-month period.
Employers must handle each application reasonably. They must decide and inform the worker of the decision within 1 month of the application. They can only reject it on specified statutory grounds, which echo the grounds on which flexible working requests can be refused. Failure to comply with these responsibilities will give rise to a potential Employment Tribunal claim against the employer. The Employment Rights Act 1996 provisions dealing with automatic unfair dismissal and unlawful detriment will also be extended to encompass mistreatment of employees for applying, or taking in action in relation to, an application for a predictable working pattern.
Impact on Employers
The WPT 2023 will have most impact on workers in industries such as the gig economy, retail and hospitality, where work patterns tend to be more variable. Workers in these sectors, often engaged in zero-hour or casual contracts, will potentially gain more control over their work patterns when this come into force next year. Employers in retail and hospitality, for example, use zero-hour contracts to enable them to respond to fluctuating demand. It remains to be seen how many applications will be made or granted in practice. However, employers in those sectors should not assume that requests cannot be accommodated and should approach any requests with an open mind.
Employers should start to prepare now, by looking at their existing contracts for casual and zero-hour staff, ascertaining how many staff will be covered by the new provisions and considering how applications will be dealt with. ACAS is expected to release a draft Code of Practice this autumn, which employers should review carefully to understand how the process will work.
We will keep clients updated on developments – please contact Lydia Christie, our Head of Retail, if you would like to receive updates about this topic.