On 18 September 2023 the Workers (Predictable Terms and Conditions) Act 2023 (the Act) became law. It introduces a new statutory right (expected to come into force in a year’s time) for workers to request a more predictable working pattern. The Act is intended to address the imbalance of power between some employers and workers in atypical work, encouraging workers to begin conversations with their employers about their working patterns.

Who can apply?

The new right will apply to:

  • workers with uncertain working patterns
  • those on a fixed-term contract of 12 months or less (who can request a longer fixed-term or the removal of any provisions relating to fixed-term)
  • agency workers (who can make their request either to the agency or the hirer provided they meet certain qualifying conditions).

What must an employer do on receipt of an application?

The new right is included in the flexible working provisions of the Employment Rights Act 1996, and, as with other flexible working requests, on receipt of an application an employer must:

1.  deal with the application in a reasonable manner

    2. notify the worker of the decision within one month

    3. 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
    • such other grounds as the Secretary of State may specify by regulations

    4. if a request is granted, offer the new terms within two weeks of granting the request.

    When can an application be made?

    The qualifying period for this right will be set out in secondary legislation, but is expected to be 26 weeks (though workers will not have had to have worked continuously during that period).

    A maximum of two applications will be allowed during any 12-month period.

    The Act and the secondary legislation will come into force in approximately one year’s time, so that employers have time to prepare for the changes. A new ACAS Code of Practice will provide guidance on how to make and handle requests for a more predictable working pattern. A draft Code of Practice will be available for public consultation ‘in the coming weeks’.

    What are the risks of getting it wrong?

    A worker can bring a claim in the Employment Tribunal if an employer has failed to deal with a request in the required manner. If a claim is upheld, the employer can be ordered to:

    • reconsider the application
    • pay compensation to the worker (expected to be up to a maximum of eight weeks’ pay, in line with the current flexible working compensation limit).

    However, if a worker is able to show that the rejection of a request amounted to discrimination, compensation could be significantly higher.

    What to take away

    Given the high volume of workers in the NHS who do not have predictable working patterns, we can expect to see applications being made by those workers who desire more certainty. This includes bank workers, locums, those on zero hour contracts, fixed term employees and agency workers.

    Whilst some staff may be happy with the flexibility that comes with this sort of arrangement, and employers use these models to cover fluctuations in demand, employers should start considering now whether there is an ongoing need for particular staff to be on unpredictable contracts if it is clear that they would prefer more predictable working patterns. Employers and employees will also need to bear in mind issues arising around employment status.

    Once the ACAS guidance has been published, employers may wish to consider:

    • amending their flexible working policies to include this new right
    • offering training to managers on how to handle requests under the Act
    • how to ensure consistency of approach to avoid any claims for discrimination in relation to the rejection of requests under the Act.

    How Capsticks can help

    Capsticks has experience in supporting employers with flexible working requests, and can offer advice and guidance on the new right. For further information on the Act please contact Laura Horovitz.