New rights for workers to request a predictable working pattern

The Act provides workers with the right to apply to their employer for a change in terms and conditions of employment if there is a lack of predictability in their working pattern. A working pattern includes the number of hours worked, the days of the week worked, the times of the day worked, and the period they are contracted to work.

Eligible workers will have the right to submit two requests in any 12-month period, including any requests made under the statutory flexible working scheme for a more predictable work pattern.  Employers must provide a decision on the request within one month.

It is important to note that the changes only provide for a “right to request, not a right to have” predictable working and there are grounds on which a request can be refused.

Employees and workers, including casual bank workers and agency workers, can make a request if they have an unpredictable working pattern.

It will not be a day one right, but the period of continuous employment required has not yet been specified. We expect it to be 26 weeks.

Employers will be permitted to refuse a request on any of the six permitted grounds:

1. Additional costs;
2. Detrimental effect on the ability to meet demands from service users and clients;
3. Impact on the recruitment of staff;
4. Detrimental impact on the employer’s business;
5. Insufficient work; and/or
6. Planned structural changes.

The new right could entitle a worker to bring claims for:

• Breach of the statutory right – if the correct procedures are not followed if a request is made.
• Unlawful detriment – if they suffer a detriment for making or proposing to make an application for a predictable working pattern, or for alleging or bringing proceedings to assert their rights.
• Automatic unfair dismissal – if they are dismissed for making or proposing to make an application for a predictable working pattern, or for alleging or bringing proceedings to assert their rights.

A tribunal can:

• Make an order requiring the employer to reconsider the application.
• Award such compensation as is ‘just and equitable’ to the worker (this is eight weeks’ pay under the flexible working regime, so it could be the same or similar).
• Award compensation for unlawful detriment and/or unfair dismissal claims.

There is currently no set timeframe for implementing the new statutory right but is expected to come into force within the next 12 months, so there is some time to prepare for the changes.

Acas will shortly be producing a draft Code of Practice to include non-statutory guidance for employers on the new scheme.

The new right has the potential to have a significant impact on the care sector because it is common for workers to have unpredictable working patterns. For example:

• Care providers often require workers to work at such times as set out in the rota. It seems likely that some of these workers would prefer to work set days and times.
• Use of zero hours contracts (employee or bank worker) is high. From our experience, in residential care, zero hours workers generally don’t want predictable working hours and often refuse requests to move to such contracts. However, in homecare, where zero hours contracts are more prevalent, there could be significant interest from workers who want more predictable working arrangements.
• The use of agency staff is relatively high in the sector and agency staff often work for prolonged periods for a particular provider. It’s unclear whether there would be any appetite amongst this part of the workforce to have more predictable hours.

Providers will of course have potential grounds to refuse a request, but the reason given will require careful thought and a blanket approach should not be taken.  Homecare providers are likely to sight the woeful commissioning practices as the reason why more predictable work patterns cannot be provided.

Ultimately some workers will want flexibility and others will prefer more predictable ways of working. Taking an individualised, rather than one size fits all, approach to working patterns will help with staff retention, so there are clear benefits for those providers who can accommodate the requests of their workforce.

The specialist team of employment lawyers within our Health & Social Care team can:

1. Advise you on the implications of the proposed changes for your workforce and how to manage them;
2. Provide a Predictable Working Request Policy
3. Train HR teams and managers on how to effectively and compliantly manage requests and avoid the risk of grievances and Tribunal claims.