Casual workers will soon be able to make requests for more stable contracts and hours. Ashleigh Webber looks at whether the new legislation is likely to make any difference or simply serve as a box-ticking exercise.
Last month the eagerly-anticipated Workers (Predictable Terms and Conditions) Act 2023 received Royal Assent. When enacted, it will give all workers on zero-hours or temporary contracts the right to request a more predictable working pattern – something trade unions and think tanks have suggested would improve the quality of casual work.
The Act has been broadly welcomed, although it has taken a while to reach the statute book – it was initially promised in the government’s Good Work Plan in 2018, after more stability was recommended in Matthew Taylor’s Review of Modern Working Practices a year earlier.
With one in nine workers in insecure work, the new right is likely to give more stability to a significant proportion of the workforce. However, the legislation does not guarantee that a worker will be granted a more stable contract, and there are concerns that its introduction has merely been a tick-box exercise to show that the government is doing something to tackle the issue of insecure employment.
Like the recent Flexible Working Act, the legislation only gives workers the right to have their request a more stable contract heard by their employer and does not oblige organisations to accept it.
Employers will be able to dismiss their request under an extensive list of statutory grounds for refusal, ranging from cost to insufficient work during the hours the worker proposes. They will have one month to respond.
Not really addressing the problem
Employment law consultant and trainer Darren Newman believes the Workers (Predictable Terms and Conditions) Act nods towards a genuine issue but does not go far enough to actually tackle it.
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He said: “This sort of legislation uses some sleight of hand to make it seem as though the problem is being addressed when in reality it isn’t.
“The request must be handled in a reasonable manner – but the employer’s ultimate decision does not need to be reasonable. As long as it is genuinely motivated by a business reason, such as additional cost, then it can be as unreasonable as it likes in saying no to the worker.”
Newman suggested that employers will not have to assess requests for predictable work patterns as stringently as they would a flexible working request, where they must be careful to avoid discrimination because women are more likely than men to request flexibility.
“I don’t see a similar issue with this legislation and so this is just a right to request something that the employer can simply choose to reject,” he added.
Stephen Moore, a partner at employment law firm Ashfords, said the extensive list of statutory grounds for refusal “essentially provides employers with an easy get-out”, but the Act does oblige employers to carefully consider requests to avoid legal claims.
“Where there are procedural failings, which include a lack of proper consideration for and timely response to the request, and a refusal which is based on incorrect facts, the Act entitles workers to bring a claim against their employer,” he said.
This is just a right to request something that the employer can simply choose to reject,” – Darren Newman, employment law consultant
He pointed out that “this may encourage employers to adopt a more cooperative, open-minded approach to the requests, but also to working conditions more generally, resulting in a more balanced relationship between the employer and worker”.
Difficult to challenge a refusal
Natasha Letchford, senior associate at Wilsons Solicitors, said the reasons for refusal outlined in the Act are broad, which could mean that many requests would be unsuccessful.
“In many cases, employers will be able to identify one or more of the reasons to refuse a request and provided they do not act unreasonably or in a discriminatory manner, it will be difficult for a worker to challenge the decision,” she said.
Newman said the legislation is complex and suggested this could act as a barrier to temporary or zero-hours workers successfully navigating the process.
However, Kate Palmer, HR advice and consultancy director at Peninsula, believes the legislation has been designed to help the many workers who crave more predictability.
“Some people may say that there is no point in bringing in this new law given that the legislation has so many built-in reasons why employers can refuse requests from workers, including the burden of additional costs, a detrimental effect on the ability to meet customer demand, and insufficiency of work during the periods the worker proposes to work. Perhaps the most wide-ranging of all the reasons is a detrimental impact on other aspects of the employer’s business, which could arguably apply in many situations.
“However, it is the latest in several new laws designed to offer more protection for workers. Of course, employers should look to accommodate more predictable working patterns wherever possible when requested.”
But, she added, unless employers allow changes to working patterns, there “won’t actually be any tangible improvement for workers just by giving them the right to request”.
How the Act could be improved
On its own, the Act may not address the power imbalance between workers and employers many critics of zero-hours contracts point out, but it might if it is coupled with other enhancements.
Some people may say that there is no point in bringing in this new law given that the legislation has so many built-in reasons why employers can refuse requests from workers” – Kate Palmer, Peninsula
“The right to request predictable working patterns was one of several measures that the government consulted on in 2019 to address one-sided flexibility in the labour market, which included a right to reasonable notice of work schedules and compensation for shift cancellation at short notice. These measures were not progressed,” Letchford pointed out.
Newman suggested that a more effective method of tackling the one-sided flexibility often present in atypical employment would be to deal with pay.
“Why not make employers pay a premium for unpredictable hours? If a worker is paid minimum wage for hours that are guaranteed each week, you could give them a right to time and a half for any additional hour that is not guaranteed. That would incentivise the employer to guarantee as many hours as possible,” he said.
“If there is a change in government in the next year then that is certainly the kind of measure that we can expect to see as part of Labour’s policy of abolishing zero-hour contracts.”
Moore said employers should be required to enter into a consultation with workers before refusing a request, like they would need to in the case of flexible working.
He also suggested removing the 26 weeks’ qualifying service requirement, comparing it to the right to request flexible working from day one of employment.
Employers might struggle to meet the one-month deadline to respond to a request for stability, so it would be wise for the government to extend this too, said Palmer.
“If an employer has more time to hear the request and look into whether it is possible or not to accommodate the change in hours before being required to provide a response back to the employee, it might be of benefit to both the employer and workers,” she said.
With the legislation not likely to take effect until autumn 2025, employers of temporary, zero-hours or casual workers have ample time to prepare for potential requests for stability and consider how granting it could impact their business.
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