Bill to tackle “one-sided flexibility” now backed by the Government

The Government has announced that it will be supporting the Workers (Predictable Terms and Conditions) Bill, which will give workers with an unpredictable work pattern the right to request a more predictable one. This is a private member’s bill, which would fulfil the Government’s commitment to introduce such a right for all workers after 26 weeks of service, made in its 2018 Good Work Plan.

The press release summarises the aim and scope of the Bill as follows:

If a worker’s existing working pattern lacks certainty in terms of the hours they work, the times they work or if it is a fixed term contract for less than 12 months, they will be able to make a formal application to change their working pattern to make it more predictable.

Subject to parliamentary approval, all workers and employees will have this new right once it comes into force, however, they must first have worked for their employer a set period before they make their application. This period will be set out in regulations and is expected to be 26 weeks. Given the proposals aim to support those with unpredictable contracts, workers will not have had to have worked continuously during that period.

While its aims are relatively easy to summarise, the legislation is complex. At 26 pages, the Bill is by far the longest of the growing number of employment-related bills going through Parliament which have now been backed by the Government (for other examples see here). Much of the complexity is due to the Bill creating two separate but similar rights: one for directly engaged workers and one for agency workers. In the case of agency workers, they will also have the right to request a contract from the hirer in certain circumstances, as well as asking the temporary work agency for more predictable terms.

Like the right to request flexible working, it is a right to request, not a right to have. An employer can refuse the request for a number of specified reasons, which are similar to those available to employers refusing a flexible working request. The relatively limited compensation available for breach of these new rights, plus the protections against victimisation for those who have made these requests, also track the flexible working regime. However not only is the substance of the right different, but it extends to all workers, not just employees.

The Bill will repay careful study as it progresses through Parliament. While it only creates a right to request, we have seen from the success of the flexible working legislation how such a right can be a catalyst for quite significant changes in the labour market. The fact that zero-hours and gig workers, some shift and agency workers, and even employees on short fixed term contracts will be able request more predictable working patterns will certainly require employers to think more carefully about the way they manage members of their workforce who don’t work predictable hours, or don’t have permanent contracts.

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