Predictable terms and conditions

A new law called The Workers (Predictable Terms and Conditions) Act 2023 has been proceeding through the UK Parliament recently and received Royal Assent on 18th September 2023.

This Act is not law yet, it needs further Regulations to come into effect – it is expected to come into effect around September 2024 (but there’s a lot that could prevent this actually happening!……).

This new law will allow workers to make a request for more predictable terms in their employment contract, in certain circumstances.

Workers“, under this Predictable Terms and Conditions law, include workers, those on zero-hours contracts, Employees and agency workers.

The law will be similar to Flexible Working legislation, in the following sense:

  • The new law gives a worker the right to request more predictable terms in their employment contract.  It does not give them a right to receive more predictable terms – Employers will be able to refuse such requests for various reasons (see below).
  • There will be a qualifying period to be able to make such a request; which is likely (not yet confirmed) to be that the worker must have worked for their Employer for 26 weeks (but not continuously worked for 26 weeks; a total of 26 weeks work will be needed).  It is also likely that the worker will need to have worked for the same employer during the month immediately before the minimum service period (e.g. 26 weeks).
  • Acas will prepare a statutory Code of Practice to provide guidance on how Employers should deal with such requests (a public consultation is expected in Autumn 2023).  Employers are likely to have 1 month from the date of application to make a decision about the request.
  • The request from the worker must be made in writing and state that it is a statutory predictable working application and specify the change they are applying for and the date on which they propose the change should take effect.

Workers will be able to make such a request where there is a lack of predictability in the work they do for their Employer.  A lack of predictability is likely to include:

  • There is a lack of predictability in their work pattern – which could be the number of working hours or the working days and times they work; and the contract length.
  • So, for example, Workers on Fixed Term Contracts for 12 months or less – they could request a longer fixed term contract or a permanent contract.
  • Agency workers will be able to apply to either their agency (the temporary work agency) or the hirer (who they do the work for) to request a more predictable working pattern.

Workers will be able to make to 2 statutory requests in any 12 month period,

Employer will need to consider the application, but can refuse such requests for the following reasons:

  • the burden of additional costs
  • a detrimental effect on the ability of the employer to meet customer demand
  • a detrimental impact on the recruitment of other staff
  • a detrimental impact on other aspects of the business (in the case of an agency worker, the temporary work agency or the hirer’s business)
  • if there is insuffient work during the periods the worker wishes to work
  • if the business is planning or has planned structural changes
  • and “such other grounds as the Secretary of State may specify by regulations”!

Employers need to be aware that if requests from certain groups are routinely rejected (e.g. requests from disabled people, women) they may be at risk of indirect discrimination claims under the Equality Act.

After the Employers decision, Workers can make a claim to an Employment Tribunal if:

  • they believe the Employer has failed to comply with the statutory procedure,
  • or the Employer has failed to deal with the request in a reasonable manner,
  • or the Employer has rejected the application based on incorrect facts.
  • Workers will also be able to make a claim if their employment has been subject to an unlawful detriment, when they have made or are proposing to make an application for a more predictable working pattern.
  • Employees (not workers) will be able to claim automatic unfair dismissal if they are dismissed because they have made or are proposing to make an application for a more predictable working patterns.

Obviously, we’ll update this information when/if this becomes law!  You can see our article on Crunch about this here.