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Predictable working requests and the new Acas code

Acas have issued a consultation on a new draft statutory code of practice for handling requests for a predictable working pattern, which will be used in conjunction with the Workers (Predictable Terms and Conditions) Act 2023 once it comes into force.

The Workers (Predictable Terms and Conditions) Act 2023 received royal assent earlier this year and is expected to come into force in September 2024. This Act will give workers and agency workers the right to request more predictable terms and conditions of work. There will be accompanying Regulations which will set out further details on the terms of the Act.

On the 25 October 2023 Acas published a draft statutory code of practice on handling requests under the Act, which is currently the subject of an ongoing consultation. The draft code outlines the procedure for dealing with requests for a predictable working pattern from both workers and agency workers and lays out the best practice guidance for how employers can navigate such requests in a reasonable manner.

It is intended that the Act will bring atypical workers a sense of predictability around their working pattern, as provided they meet certain criteria, they can make an application for a predictable working pattern where they specify the change they are applying for and the date on which the change is proposed to become effective. A worker will be entitled to make such a request provided they have qualifying service (which will be set out in the accompanying Regulations but is expected to be 26 weeks), there is a lack of predictability in relation to the work the worker does, the change relates to the worker's work pattern and the purpose in making the application is to have a more predicable work pattern. An individual can make two statutory requests within any 12-month period.

An agency worker will also have a statutory right to make a request to their agency or hirer for a more predictable working pattern if their working pattern lacks predictability. A working pattern refers to the number of hours or the days and times the worker works under an assignment with a hirer, or the length of their assignment with a hirer. A period of service, to be specified in Regulations, will be necessary for agency workers to make an application for a predictable work pattern and there will also need to be qualifying conditions, similar to those set out above. The draft code sets out the procedure for dealing with requests for predictability around a workers working pattern and states that all requests must be handled in a reasonable manner and should be given careful consideration. This includes taking into account the reasons why the individual has made the request as well as the needs of the organisation, with the benefits and drawbacks to be considered.

It is anticipated that the process for a worker making such a request will be similar to the procedure for making a flexible working request, with the potential for an application to be rejected upon certain specified grounds. In this case, any decision to reject a request must be for one or more of the business reasons set out in the Employment Rights Act 1996 including the burden of additional costs, a detrimental effect on the ability to meet customer demand amongst other factors, insufficient availability of work during the periods the worker proposes to work and planned structural changes to the business.

Where the organisation is considering rejecting a request in line with the grounds set out above, the draft code suggests that a business should consider whether alternative or more suitable arrangements can be made for the purposes of providing greater predictability, and this should be discussed with the individual. The worker should also be granted the right to appeal against the decision, and the employer must deal with the request including any appeal, within one month beginning with the date on which the application is made.

It is noted that a failure to follow and adhere to the code itself does not make an individual or organisation liable to proceedings. However, a Tribunal will take the code into account when considering relevant cases and may use it as a guide to determine how reasonable the employer or individual has acted in the circumstances.

The consultation is seeking views on the draft code which Acas has produced. Responses can be submitted online or via email and will remain open until the 17 January 2024.

For more information contact Harry Hazelwood in our Employment & HR department via email or phone on 01772 220207. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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