New right to request a ‘predictable’ working pattern gets government backing

The government is backing new legislation designed to give workers with an unpredictable work pattern the right to request a more certain arrangement. The private member’s bill addresses concerns raised by the 2017 Taylor Review and the 2018 Good Work Plan regarding the so-called ‘one-sided flexibility’ that many workers experience, especially agency workers, where they find, themselves left waiting to see if they’re going to be called up at the last minute for a shift. The new right will have the greatest impact in sectors operating shifts and rotas so how will it play out in practice? We’ll consider that.
This is the Workers (Predictable Terms and Conditions) Bill which, on Wednesday, passed the Committee stage of its journey to becoming law. Under the bill, a worker may apply for a change to their terms and conditions of employment with the purpose of obtaining a more predictable working pattern if, broadly speaking:

- they have 26 weeks’ service 
- there is a lack of “predictability” in the work that they do; and
- the change relates to their ‘working pattern’, i.e. their hours, days, or fixed-term contract period

The new right is similar to the current right to request flexible working in that it would be a right to request a change rather than a right to have the change granted. Also, similarly, the employer would be able to refuse the request for a number of specified reasons similar to those available to employers refusing a flexible working request. However, the bill is wider in scope than the flexible working legislation in that it would extend to all workers, not just employees.

So how might this work in practice? Earlier Anne Sammon joined me by video-link to discuss it. I asked her what this might mean for HR:

Anne Sammon: “I think HR should be thinking about what their internal policies and procedures would be if this legislation is implemented. At the moment it looks like it's very likely to be implemented and, I suppose if I was sat in HR, I'd want a project plan in terms of who's going to be involved, who are we engaging, how do we get buy in from the business and, actually, to what extent is this even going to impact us as a business because, for some organisations, they won't use this sort of quite precarious labour, whereas others will use it far more frequently and, therefore, are going to have a much greater impact from this type of legislation just in terms of administration of requests.”

Joe Glavina: “There’s an obvious similarity with the flexible working legislation and, as we know, employers refusing requests under that law need to be mindful of the indirect discrimination risk. Do employers face that risk with this bill?”  

Anne Sammon: “I think it's a slightly different picture, although I think there may be groups of employees who are able to show, based on their particular industry, or based on the particular roles that they do, that there is an indirect discrimination element. For example, if we were thinking about people in the healthcare industry, some of those roles that rely on rotas may well be more filled by women than men and therefore there may be potential arguments around indirect sex discrimination that individuals can bring, so I think it's going to be kind of role specific. We don't have the whole statistical basis that we have for indirect sex discrimination claims when it comes to part time workers where, almost, the tribunals will accept at face value the fact that women are more likely than men to work part time and, therefore, that kind of hurdle for bringing a claim has already been fulfilled.”

Joe Glavina: “The bill allows employers to refuse requests for various business-related reasons, just as they do with flexible working requests, so employers who rely on workers having less predictable working arrangements should be able to continue with those arrangements. So, is it a case of just making sure you set up processes for dealing with requests for greater predictability when they come in?”

Anne Sammon: “I think that's absolutely the point and, also, they need to have thought about why they deploy labour in that way. So, my experience is generally where employers are relying on this type of labour, it's because there's a good reason for doing so and so if you've got a good reason, you just need to be able to articulate that so that when a request comes in, you're able to justify why you're declining it.”

Joe Glavina: “Across Europe we already have the EU Directive on Transparent and Predictable Working Conditions and most EU countries have legislation in place for that. So what’s your message to employers with operations in Europe affected by that already?” 

Anne Sammon: “So, I think if you're an EU employee, you'd need to be thinking about how that sits across your different jurisdictions. Obviously, it won't take direct effect for UK employees but there is that piece around fairness of application. So, if you've got a large number of employees in multiple jurisdictions, what we quite often see as employers think about whether those policies should be applied more globally than they're required to just from a kind of employee relations perspective.”
If you want to know more about the bill and how the new right will work in practice than a good place to look is the Explanatory Notes to the bill which are available from the government’s website. We’ve put a link to both the bill and the Explanatory Notes in the transcript of this programme.

LINKS
- Link to The Workers (Predictable Terms and Conditions) Bill
- Link the Explanatory Notes to The Workers (Predictable Terms and Conditions) Bill
- Link to government’s press release