Hospitality focus: New laws to request predictable working patterns
9 October 2023
The Workers (Predictable Terms and Conditions) Act 2023 received Royal Assent on 18 September 2023. Under the new legislation, from next year, workers (including agency workers) who work atypical hours will be given a legal right to request a more predictable work pattern from their employer.
These changes are likely to impact the hospitality and leisure sectors and those who operate in the gig economy, where staff often work under zero-hour contracts or on a temporary basis.
The legal position
Workers and agency workers will have the right to request a predictable working pattern in the following circumstances.
- The worker has a lack of predictability to their work pattern (this is an automatic presumption for fixed-term contracts of 12 months or less).
- The change requested relates to their work pattern.
- They are seeking a more predictable work pattern through making the request.
A maximum of two applications may be made in a 12-month period, and the employer may reject the request on prescribed statutory grounds. Workers must have a minimum of 26 weeks’ service to make a request, although will not have to have worked continuously during that period. Agency workers will be able to apply to either the temporary work agency or the end hirer to request a more predictable working pattern.
When an application is made it must set out the change being applied for and the date the proposed change would commence. Employers must ensure that the request is handled in a reasonable manner, which will include meeting with the worker and then a follow up meeting to discuss the issues. The employer should then either allow or reject the request, with the worker being notified of the decision within one month of the request.
In a similar way to the existing right to request flexible working arrangements, employers can rely upon six specified grounds to refuse a request for predictable hours. These are as follows.
- Ability to meet customer demand
- Additional cost
- Impact on recruitment
- Impact on other areas of the business
- Planned structural changes
- Insufficiency of work during the proposed periods
If rejected, the employer must set out its reasons for this and allow the worker to exercise a right of appeal.
Where the request can be accommodated, new terms and conditions (on no less favourable terms) incorporating the change in their work pattern should be provided within two weeks.
Where employers have failed to properly consider the request or rejected it on non-permitted grounds, this could result in a claim being brought in the employment tribunals. If the claim succeeds, the tribunal may order compensation or the reconsideration of the application.
Regulations will be published in due course, setting out further details of the procedure that employers should follow when considering a request for a predictable work pattern. The Government has indicated that these will come into force approximately 12 months after the Act was passed. To assist workers and businesses in understanding the new obligations and how such requests should be handled, Acas will be producing a new Code of Practice.
The Birketts view
Given the relatively high prevalence of atypical working practices in the hospitality and leisure sectors this is important legislation for businesses operating in that industry to be aware of.
These rules will operate in a similar way to the existing right to request flexible working arrangements and as such, the legislative changes do not go so far as to create a right to be given a predictable work pattern. Employers will want to take care in handling such requests to make sure that they are dealt with in a reasonable and timely manner, and especially where the reason for the request is linked to a protected characteristic, as this could also potentially lead to claims being brought under discrimination legislation.
We are here to help
Our hospitality and leisure sector employment specialists will be happy to advise any employers who require advice on this topic, or who have any other questions relating to employment law.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at October 2023.