Written by Nicola Gater | 17th July 2023

Earlier this year, the Government announced it is supporting a Bill to provide workers with the statutory right to request a more “predictable” working pattern.

This aims to give many workers, who often find themselves waiting to see if they’re going to be called up for a shift at the last minute, a more certain working arrangement.

If the legislation is implemented, workers will be able to request a more predictable working pattern in terms of the number of hours they work, the days or times of the day they work, or the length of their contract. The legislation will put in place a statutory process that must be followed, similar in approach to the process for requesting flexible working.

The Bill is currently progressing through Parliament, so some details may change, but here is what we expect:

When is a worker eligible to submit a request?

This Bill applies to workers and employees – individuals who work personally under any type of contract – typically zero hours employees or casual workers who have no guarantee of what work will be offered when. It will not apply to anyone who is self-employed.

It will also apply to anyone working under a fixed term contract of any work pattern if that contract is for less than 12 months. A worker or employee will be able to request an extension to that contract in order to provide certainty and predictability.

Agency workers will also be able to request more predictable hours and will be able to make their request to the end user organisation (rather than just the agency that employs them) if they have worked for the end user for 12 continuous weeks or more.

Those working shift patterns, where there is a regular and predictable rotating pattern, will not have this right.

For a worker to be eligible to apply, it is expected that they will need to have worked for the same employer for 26 weeks, although this does not have to be continuous.

Workers can request for a more predictable working pattern where:

  • Their work pattern lacks predictability,
  • The change requested relates to their working pattern, and
  • The purpose of the request is to achieve a more predictable working pattern.

The rules and restrictions:

If the Bill comes into force, it is important that any applications made by your workers are in writing and state that it is a request for a more predictable working pattern. It must also set out a date proposing when they wish the change to become effective.

A maximum of two applications can be made in a 12-month period, however, these cannot be made simultaneously.

How should employers deal with requests?

The draft Bill claims employers will need to deal with requests in a “reasonable manner”. We suggest you treat this like a flexible working request, and have a meeting with your employee to give them the opportunity to present why they would like to change their working pattern.

As with the flexible working legislation, failing to follow the statutory process or unreasonably refusing a request could lead to a discrimination risk or tribunal claim. The draft Bill states a request can be rejected on the following grounds:

  • 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 business
  • Insufficiency of work during the periods the worker proposes to work
  • Planned structural changes
  • Such other grounds in specified regulation

We would always recommend you carefully consider the request and explore alternative options to achieve a compromise if you cannot agree to the initial suggested working pattern. If you do refuse, communicate clearly the reasons for this, and if possible, have good evidence of why it won’t work so the worker can see it is a fair decision.

You must notify the worker of your decision within one month of receiving an application. If you grant the request, you will have a further two weeks to confirm the contractual change in writing.

What can an employer do now?

This Bill is still in draft, so there is no immediate requirement for you to take action.

We advise you keep an eye on the progress of the Bill and make sure relevant employees, such as line managers and your HR team remain updated and prepared.

If the Bill is accepted, you may want to introduce a Predictable Working Policy to set out how requests can be made and devise a process for handling them.

Many organisations rely on casual workers and short-term contracts due to the nature of their business. This Bill won’t make that impossible, if there are good reasons for it, but it will challenge employers to think about whether the work can be arranged in a different way to better suit the worker, as well as meeting the organisation’s needs. At a time when all businesses are focused on attracting, retaining and motivating good workers, this can be a positive thing.

If you have any questions, please get in touch with our experts at info@realityhr.co.uk.