The right to request a predictable working pattern – what’s that then?

Written by JMW Solicitors LLP

The Workers (Predictable Terms and Conditions) Bill has recently passed its second reading in the House of Commons. The Government has confirmed its backing of the Private Members Bill, sponsored by MP Scott Benton, as of 3^rd February 2023.

What is the background behind this Bill?

The policy paper known as the ‘Good Work Plan’, published on 17^th December 2018, addressed the Government’s strategies towards the future development of employment rights. One of the headline commitments was to introduce the right to request a more stable contract for those on zero-hour or casual contracts of employment. In response to the Good Work Plan, the Department for Business, Energy and Industrial Strategy (‘BEIS’) published the “Good Work Plan: consultation on addressing one-sided flexibility”.

The consultation paper went a step beyond the commitments within the Good Work Plan, and aimed to address the one-sided flexibility which employers have over the casual staff they employ. Specifically, they recommended that:

1. Every worker should have the right to reasonable notice of their working hours.
2. Workers should be given compensation for the cancellation of work without reasonable and prior notice.
3. Workers should be allowed to switch to a contract which reflects their normal working hours.

The third recommendation goes beyond the suggestion in the Good Work Plan for workers to ‘request’ the right to a more stable contract, and instead provides that workers should automatically be allowed such a contract if their hours are regular. We assume that these Government commitments form part of an overall strategy to permit casual workers to gain clarity and stability in their roles. In May 2015, the Government introduced a ban on exclusivity clause in zero-hour contracts. This means that it is now unlawful for employers to prevent an individual who is employed under a zero-hours contract from working elsewhere. A Bill on one-sided flexibility in line with the Consultation paper means that workers with multiple employers could secure more guaranteed access to work.

What is the current status of the BEIS consultation?

As the consultation paper was released in 2018, those affected by the proposals have long awaited a formal Government response. The highly anticipated Employment Bill has stalled in progress, and wasn’t mentioned in the Queen’s Speech on 11^th May 2021 or 10^th May 2022. It has previously been predicated that one-sided flexibility could be included within the Employment Bill.

More recently, Kevin Hollinrake MP, Parliamentary Under-Secretary for BEIS confirmed on 4^th November 2022 that the Consultation will be responded to “in due course”.

The Workers (Predictable Terms and Conditions) Bill

Whilst the Private Members Bill does not go as far as the recommendations in the consultation paper, it does introduce a right to request a predictable work pattern where:

1. There is a lack of predictability in respect of their work pattern.
2. The proposed request relates specifically to their work pattern.
3. The aim of the proposed request is to obtain predictability.

The scheme would work similarly to the flexible working framework, in which applications need to be made to their employer, and considered within a certain timeframe. Employers could refuse requests on legitimate business grounds, and the same remedies contained in the Employment Rights Act 1996 in respect of the flexible working scheme would apply here. What amounts to a ‘work pattern’ is interestingly left undefined, and could refer to working hours, places or other practices.

The wording of the Bill further refers to the right for agency workers to request a more predictable work pattern, and they can make such a request to either the employment agency, or the hirer.

Similarly to the right to request flexible working, the right is only one to request a predictable work pattern. It seems plausible that many agency workers would not want to request predictability as they may be engaged with other employers and agencies, and therefore prefer flexibility. Furthermore, the business grounds to refuse a request would still be in place, and if a less rigid work pattern is needed for the role, then this may be capable of being justified under the proposals.

As with the usual passage of Bills through the Houses of Commons and Lords, we may see further amendments of the scheme. If passed, it would certainly be a step towards addressing the ‘one-sided flexibility’ issue in the casual worker and gig economy. However, greater changes would need to be made if the recommendations in the 2018 Consultation paper are to be given any true consideration.