On 25 October 2023, Acas launched a consultation on a draft statutory Code of Practice in relation to the right to request predictable work patterns. The Workers (Predictable Terms and Conditions) Act 2023 received Royal Assent on 18 September 2023, although further regulations are required to bring the substantive right into force. It is anticipated that this will be in autumn 2024, alongside the new Code being consulted on. Acas has indicated that around the same time next year, it will also publish an updated Code of Practice on handling requests for flexible working in a reasonable manner. It intends to clarify the inter-relationship between the two rights.
We wrote about the key provisions in the draft of the Workers (Predictable Terms and Conditions) Act 2023, and the implications of that legislation in March: Future of work: Right to request predictable work pattern (taylorwessing.com). One of the things the draft Code draws attention to is that there may be slightly different procedures, depending on whether the person is an employee/worker or whether they are an agency worker. Is this using a sledgehammer to crack a nut? It seems to me that the distinction is important because it may be easy to miss that an agency worker will be able to make a request not only to the agency which engages them but also to the hirer or end-user of the services. In effect, it will be a request for a different contractual relationship with a different entity, not just a modification of an existing arrangement.
One of the questions within the consultation is whether or not it would be helpful to have examples of when it will be legitimate for an employer or hirer to withhold or reduce hours or shifts. Undoubtedly, yes. But that will still not enable an employer or hirer to act with impunity. To the extent that an employee, worker or agency worker does not get their desired shifts, they may be able to bring a detriment claim against the employer or hirer if they have made a request for more predictability. Business costs, litigation risk, will be harder to anticipate or ringfence in respect of the contingent workforce.
Let's remember that, if Labour wins an election, it has pledged to go further than these proposals, by adding in a right to receive compensation if shifts are changed or cancelled at short notice. It will also ban zero hours contracts. One-sided flexibility is set to change but until there is a single enforcement agency in respect of vulnerable workers (something Labour has committed to introduce), we are unlikely to see a significant culture shift.