2 March 2023
Law at Work - March 2023 – 1 of 3 Insights
The quiet progress of a number of Private Members' Bills, which have received Government backing, runs counter to the narrative that any changes to employment law look set to be anti-progressive and purely pro-employer. With a lot of focus on the potential 'bonfire of rights' that may take place as a result of The Retained EU Law (Revocation and Reform) Bill, as well as on the Government's determination to curb the power of trade unions, it would be easy for some other radical changes being proposed to receive less attention than they deserve.
One such proposal is the Workers (Predictable Terms and Conditions) Bill. If the proposals become law, casual and temporary workers, and agency workers, will have new rights and protections in relation to requesting a more predictable work pattern. It will give them a voice and visibility that we are used to associating with employees. In turn, employers and hirers will have to factor these new rights into business models which have previously relied on one-sidedness.
In summary, the Bill would amend the Employment Rights Act 1996 by giving workers and agency workers the right to request a more predictable working pattern. This might relate to:
Notably, contracts of 12 months or less are presumed to lack predictability. Workers would have to specify the changes they would like to see and act with the purpose of getting a more predictable working pattern. A worker would be entitled to make two requests in a 12 month period. There is likely to be a 6 month qualifying period before the right to request may be exercised.
Employers would have to:
They would be entitled to refuse the request on prescribed grounds, including insufficiency of work, cost, detrimental impact on ability to meet customer demand or other aspects of the employer's business.
Parallels may be drawn with the right to request flexible working (afforded to employees and set to be modified); largely it is a procedural right and employers may refuse requests relatively easily. Having said that, employers may face claims for breach of the statutory requirements and may also find themselves on the receiving end of detriment and automatically unfair dismissal claims if the detriment or dismissal relates to the exercise of these statutory rights.
Timescales set by the legislation would require the employer to consider and respond to the request within one month of receiving it. If they were minded to grant the request, they would have to make an offer within 2 weeks of accepting the request. In general, the fact that a worker has ceased to work for an employer during the period for consideration will not exonerate the employer from having to consider the request. Special provisions will make clear when someone is in effect a 'bad leaver' for the purposes of the legislation, meaning the employer will then not have to consider the request. This represents quite a sea-change from the current approach of 'out of sight out of mind' that applies to casual workers.
As with all new proposed legislation, how these new statutory rights might play out in practice must be considered from different perspectives. For example, casual workers on a rota with others with 'too few' hours, might make requests at the same time as their colleagues. Any difference in treatment would have a potential discrimination angle. Giving one worker more hours because they are considered more of an asset to the business could give rise to arguments that this decision has been made due to a protected characteristic. Would an employer minded to increase one worker's hours, not others, have to go through a process akin to scoring in a redundancy exercise in order to justify its decision, if challenged?
There is scope for claims to be made, based on the current draft Bill, if an employer rejects an application based on incorrect facts. This means that employers must put some effort into engaging with the detail of the facts on the ground when it comes to casual labour. While the right to request is not as powerful as it might be, for example there is no right to request reasonable notice of working hours or right to compensation if shifts are cancelled, even the power to interrogate an employer's choice of how it organises casual labour is something novel. Employers should sit up and take notice. Unions such as the IWGB are likely to be paying attention.
2 March 2023
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by Multiple authors
by multiple authors