Background
The Workers (Predictable Terms and Conditions) Act 2023 (the Act), which received Royal Assent in September 2023, has been described as a significant step in the direction of addressing the issue of “one-sided flexibility” in the workplace.
The Act seeks to implement recommendations made by the Taylor Review of Modern Working Practices (the Taylor Review) published on 11 July 2017. The Taylor Review identified that one of the most frequently raised points in its national consultation was concern about how employers use the flexibility in the UK labour market to transfer risk to, and exert control over, workers.[1] The Taylor Review highlighted that a lack of predictability for workers, who have no guarantee of work but are expected to be available at short notice, results in income insecurity as well as making it difficult to assert their employment rights.
A right to request
The Act amends the Employment Rights Act 1996 to give workers and agency workers the right to request more predictable terms and conditions of work.
Workers will need to meet a minimum service requirement that will be specified in regulations which are still to be published but is expected to be 26 weeks. During any 12-month period, a maximum of two statutory applications to vary terms and conditions may be made for the purposes of providing greater predictability.[2]
Making an application
A worker may apply to change their terms and conditions of employment if:
- there is a lack of predictability, in relation to the work that the worker does for the employer;
- the change relates to the worker’s work pattern; and
- the worker’s purpose in applying for the change is to get a more predictable work pattern.[3]
When making an application, the worker must:
- state that it is such an application; and
- specify the change applied for and the date on which it is proposed the change should become effective.[4]
Response to the application
Once an application has been received, an employer has a duty to:
- deal with the application in a reasonable manner;
- notify the worker of the decision on the application within one month (the “decision period”); and
- only reject the application because the employer considers that one or more of the following grounds applies:
- the 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;
- planned structural changes; and
- such other grounds as the Secretary of State may specify by regulations.[5]
Next steps
To help employers prepare for these changes, Acas is consulting on a new code of practice providing guidance on responding to such requests. The consultation closes on 17 January 2024.
Overall, the provisions introduced by the Act are intended to create a fairer workplace by giving workers more control over the amount and timing of the work they do. Whilst the Act has received Royal Assent, its provisions will not come into force until sometime in 2024.
[1] Good Work: The Taylor Review of Modern Working Practices, page 42.
[2] Section 80IM (2), Employment Rights Act 1996.
[3] Section 80IA (1), Employment Rights Act 1996.
[4] Section 80IA (4), Employment Rights Act 1996.
[5] Section 80IC (1), Employment Rights Act 1996
