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All bark, no bite?

September 27, 2023

The “gig economy” is a sector that has grown significantly in recent years, in the main due to the need of employers to have workers perform their duties at unpredictable times to fulfil peaks and troughs in demand for services. The Workers (Predictable Terms and Conditions) Act 2023 which was passed into law this week looks to help workers gain some clarity and consistency in their working hours from an early stage of service.

But is this piece of legislation actually going to provide guarantees to workers that they will be able to alter their hours and redress the ‘one-sided flexibility’ enjoyed by employers? 

What does the legislation do?

When it comes into force in September next year, the legislation will allow workers, employees and agency workers to request more certain working hours if there is a lack of predictability in their current working pattern.

Workers will acquire this right of request after a period of 26 weeks service with a particular employer, which does not have to be continuous. The legislation also covers workers engaged on a fixed term contract of less than 12 months, the length of the term implying the element of unpredictability.

The new right will permit workers to make two statutory applications in any 12-month period.

The legislation only provides for the right to request more predictable working hours, without going as far as to compel the employer to agree to the request. The employer is under an (quite vague) obligation to deal with the application ‘in a reasonable manner’. They must notify the worker of their decision in responding to the request within one month of the application being made. If the application is granted, the employer must provide the worker with updated written terms within 2 weeks of granting the application.

However, the employer can reject the application on the basis of one of the prescribed (but quite general) reasons listed in the legislation:

  • the burden of additional costs,
  • detrimental effect on ability to meet customer demand,
  • detrimental impact on the recruitment of staff,
  • detrimental impact on other aspects of the employer’s business,
  • insufficiency of work during the periods the worker proposes to work,
  • planned structural changes, or
  • such other grounds as the Secretary of State may specify by regulations.

As with other forms of flexible working requests, employers will need to ensure they have evidence to support a rejection of an application for any of these reasons. Employers looking to adhere to the legislation should for example ensure they are not rejecting applications out of hand. Employers should look to put in place appropriate procedures for dealing with applications to ensure they are dealt with promptly, consistently and reasonably.

Recourse if the request is rejected

The right to appeal the decision to reject a request for more predictable working hours is at the discretion of the employer.

However, if the employee believes that their application hasn’t been dealt with in accordance with the legislation, there is a route to recourse to the Employment Tribunal. A complaint can be made to the Employment Tribunal if the employer has failed in any of the requirements outlined above in either coming to the decision on the application or applying the changes to the worker’s contract.  Where a tribunal finds that the decision of an employer in refusing an application was not made in accordance with the legislation, it will have the power to:

  • make an order for the reconsideration of the application, and
  • making an award for just and equitable compensation. The maximum figure has not been confirmed yet but it will be in the order of weeks of pay. It is unclear what factors a tribunal ought to consider in assessing how many weeks’ pay should be awarded by way of compensation at this stage.

Effect of the Bill coming into effect next year

The Bill has the potential to significantly impact the worker and agency worker sector. However, the legislation may not have the teeth to make a significant impact on the way the sector operates.  The breadth of the reasons to reject an application are general enough that they seem as if they could easily be used by employers under most circumstances. On top of this, the limited powers available to the Employment Tribunal (if the worker decides to make a complaint) don’t seem strong enough to put any real pressure on employers to seriously consider the requests put to them by their workers. ACAS will be producing further guidance on how the new right should be operated in practice, so this will give employers a better understanding of what will be specifically required of them when any application is received. That guidance is to be issued in the coming months.

This being said, it may be that other related claims will be relied upon by workers as a means of placing greater pressure on an employer to properly and fully consider any application. For example, if an employee requires to have predictability due to their having childcare or general carer responsibilities, then it is not hard to imagine a scenario where workers/ employees argue the refusal of an application amounts to indirect sex and/ or disability discrimination. In such a situation it would be key for the employer to be able to point to tangible evidence to support a view that the requested hours cannot be accommodated.

This is not the first occasion the right to make an application related to flexible working has been expanded in recent times. It will be interesting to see how much of an impact, if any, this new extension creates any real impact for employers.

If you have any questions on this on any other area of Employment law, please get in touch with Blackadders Employment Team, working in Aberdeen, Dundee, Edinburgh, Glasgow and across Scotland.

The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.

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