In our October alert we looked at the Workers (Predictable Terms and Conditions) Act and reported that Acas would produce a draft Code of Practice providing guidance on making and handling requests in anticipation of the implementation of the Act in Autumn 2024. Acas has now published its new statutory Code of Practice in draft and launched a consultation on the content. The Code will not be legally binding but will be taken into account by courts and employment tribunals when considering relevant cases.
The Act will give a worker a statutory right to make a request to their employer for a more predictable working pattern if their working pattern lacks predictability. Although "predictable" is not defined in the Act, a working pattern refers to the number of hours the worker works, the days and times they work or the length of their contract. The Code gives the example of a fixed-term contract of employment for 12 months or less being one type of working pattern which lacks predictability. Acas’ proposed Code of Practice aims to help both businesses and workers understand this new law and sets out good practice on responding to these requests.
The draft Code is in two sections, dealing separately with requests made by workers to employers and those made by agency workers to agencies or hirers. In this article we will concentrate on the section for employers.
In terms of who is eligible to make a request; the draft Code provides that the individual must have worked for the employer “at least once in the month in the period before the 26 weeks” leading up to the day of the request.
As expected, the suggested procedure for dealing with requests for more predictable working patterns is similar (but not identical) to that currently in place for making a flexible working request.
The suggested process is as follows:
- a meeting should be held to discuss the request (allowing the employee to be accompanied). This will include consideration of the worker's current working pattern and assessing the effect of the requested change for both the employer and the worker;
- employees should be informed of the outcome of their request in writing and within a month of the request being made;
- the employee should be allowed to appeal and again the outcome must be communicated to the worker within 1 month of the request being made; and
- if a request is successful, the worker must be offered a new contract within 2 weeks of acceptance.
Interestingly, if an employee’s contract ends within the one-month decision period, their request must still be handled reasonably and the outcome confirmed within the one-month period.
As with flexible working requests, an employer must accept a predictable working pattern request unless there is a genuine business reason not to. An employee’s request for a more predictable working pattern may only be rejected for one of the permitted statutory reasons set out below:
- the burden of additional costs;
- a detrimental effect on ability to meet customer demand;
- a detrimental effect on the recruitment of staff;
- a detrimental effect on other aspects of the business;
- insufficient work available for the periods the worker proposes to work; or
- planned structural changes to the business.
Where the employer is considering rejecting a request, they should consider whether there are alternative and suitable arrangements for providing more predictability. If there are, they should discuss this with the worker.
A worker may make two statutory requests for a predictable working pattern within any 12-month period. They can also make two statutory requests for flexible working within any 12-month period. However, the draft Code does clarify that if an employee makes a statutory request for flexible working and the purpose of that request is to have a more predictable working pattern, it will count as both:
- one of the employee's two statutory requests for flexible working; and
- one of the employee's two statutory requests for a predictable working pattern.
Employees may have only one live request either for flexible working or for a predictable working pattern with the same employer at any one time.
The consultation seeks views on the draft Code and the non-statutory guidance which Acas will be producing to accompany the code. The non-statutory guidance will provide more detailed guidance on the principles set out in the Code.
The consultation closes on 17 January 2024.
What does this mean for employers?
This draft Code should help employers prepare for the new legislation and the non-statutory guidance, when it is published, should help further. Employers may wish to respond to the consultation here: Acas consultation on the draft Code of Practice on handling requests for a predictable working pattern
We will report further when we have a response to the consultation. Once the Code, guidance and implementation dates are finalised employers should plan to update their policies and staff training.
