Following our article on the Workers (Predictable Terms and Conditions) Act 2023 (the "Act") ACAS published its draft Code of Practice on handling requests for a predictable working pattern at the end of October 2023. Any interested party can provide their views to ACAS during the consultation which runs until 17 January 2024.
The draft Code of Practice
The draft Code is divided into two sections: Section A addresses requests from workers to employers; Section B addresses requests from agency workers to agencies or hirers. The division aims to avoid confusion, though the guidance is broadly the same for both categories of worker.
What is an "unpredictable working pattern"?
A lack of predictability to a worker's working pattern is a pre-requisite to a statutory request for a predictable work pattern. When assessing whether a working pattern lacks predictability, consideration should be given to the number of hours the worker works, the days and times they work or the length of their contract.
The draft Code does not provide further clarity or guidance to define an "unpredictable" working pattern but refers to workers who work under contracts with a fixed term of 12 months or less as one type of working pattern which lacks predictability. The lack of specific guidance in the Code might disappoint some workers, employers, agencies and hirers.
Qualifying Periods
Secondary legislation is expected to confirm a 26-week service requirement for all workers to qualify for the right. The draft Code incorporates this and simplifies the qualifying periods for each type of application:
- Workers applying to employer: "must have worked for the employer at least once in the month in the period before the 26 weeks leading up to the day of the request."
- Agency workers applying to agency: "must have had a contract with the agency at some point in the month before the 26 weeks leading up to the day of the request."
- Agency workers applying to hirer: "must have worked in the same role with the same hirer for 12 continuous weeks within the 26 weeks leading up to the day of the request."
This third requirement aligns with the Agency Workers Regulations 2010, which grant agency workers who have spent 12 continuous weeks service in the same role with the same hirer equal working and employment conditions as those recruited directly by the hirer. However, questions arise which the response to the consultation will hopefully settle in due course, for example: Must the worker spend the remaining 14 weeks with the same hirer even if under a different contract? How do continuity rules apply in this context? If they apply in the same way, would workers who do provide 12 continuous weeks struggle to prove they have an "unpredictable" pattern?
Good practice guidance
Meetings and Decisions
While the Act does not mandate meetings, the draft Code recommends promptly scheduling a meeting with the worker to ensure a complete understanding of all the relevant information prior to making a decision. If the employer/agency/hirer intends to accept the request, the draft Code recommends a meeting to discuss how and when it should be implemented.
The Act requires applications be handled in a "reasonable manner". The draft Code explains this involves considering the worker's current pattern and assessing the impact of the change on the business. If a worker's request cannot be accepted, employers, agencies, or hirers should explore suitable alternatives.
The Act stipulates a decision must be made and communicated to the applicant in respect of both the initial request and any appeal, within one month of the date of the request. There are statutory grounds on which a request may be refused. The draft Code extends these requirements, adding that the decision should be communicated in writing without unreasonable delay, providing a clear explanation for the decision with reference to the underlying reasons.
Appeals
The Act does not mandate an appeals process, but the draft Code strongly encourages it. It further recommends that an appeal is heard without unreasonable delay, by a manager not previously involved in the initial request. In addition to deciding and communicating the appeal outcome within one month of the date of the request, the appeal outcome should be communicated clearly, promptly, and provide the reasons for the outcome.
Allowing a worker to be accompanied
There is no statutory right for a worker to be accompanied at meetings regarding predictable working patterns or appeals, but the draft Code recommends this as good practice. Where a worker is permitted a companion, the draft Code suggests allowing the worker a reasonable period of time to find a suitable companion.
Parallels with the Code of Practice for Flexible Working requests?
ACAS is reviewing responses to the separate consultation on an updated statutory Code of Practice on handling requests for flexible working, in connection with changes brought about by the Employment Relations (Flexible Working) Act 2023.
The Act and its draft Code bear strong similarity to the updated rules and procedure for flexible working requests. A comparison of the relevant statutes and draft Codes of practice for both predictable working and flexible working requests reveals broadly similar rules and procedures, with a few notable distinctions including:
- Eligibility:
- Flexible working requests may only be made by employees, whereas predictable working requests may be made by employees and workers, including agency workers, who meet the qualifying conditions.
- Flexible working requests are to become a "day 1" right for flexible working requests made on or after 6 April 2024, with the current 26-week continuous service eligibility requirement being removed through secondary legislation. (In contrast secondary legislation is expected to incorporate a 26-week continuous service requirement for predictable working requests and this is reflected in the draft Code.)
- Timeframes: Flexible working requests and any appeals should be decided within a period of two months, in contrast to one month for predictable working pattern requests.
Statutory cap on applications
Of relevance to both types of application, there is to be a limit of no more than two statutory requests in a 12 month period for an application.
Eligible applicants may only have one live request either for flexible working or for a predictable working pattern with the same employer at any one time. Where a flexible working request has been made with the goal of securing both flexible working and a predictable working pattern, the request will count as both one of the employee's two statutory requests for flexible working and one of their two statutory requests for a predictable working pattern.
What happens next?
The Draft Code is under consultation, ACAS invites views from any interested party. This is an opportunity for any stakeholder to express their views on the Code. The consultation period is soon to end, it will run until 17 January 2024. For further details see the ACAS website here.
We recommend businesses familiarise themselves with the Code and the best practice procedures for both predictable work pattern and flexible working requests and that managers are trained on how to manage and respond to these types of requests within the specified timeframes.
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.
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