Last week the government voiced its support for the new Workers (Predictable Terms and Conditions) Bill, the endeavour of MP Scott Benton to combat “one-sided flexibility”, where “workers are on stand-by for work which never comes”, it says in the BEIS press release. This is a belated by-product of the Taylor Good Work Report in 2017, so not exactly a government priority up to now.
The basic structure of the Bill is not unlike the flexible working regime and indeed there is very considerable potential for overlap and confusion between the two. The worker (which includes employee) can ask for a more predictable working pattern (days, hours, times) and the employer can only refuse if it has good business reason to do so, those reasons being substantially similar to what it could use to knock back a flexible working request. There is a compulsory consideration period for the employer and a limited financial penalty if it does not engage fully with the process or rejects the worker’s request on the basis of incorrect facts. In line with the proposed amendments to the flexible working regime, you can only make two requests per year and the request itself needs to contain certain minimum information about who you are, what you want and from when. Workers who make or seek to enforce such a request are protected from retaliatory detriment or dismissal, again in terms substantially identical to the flexible working regime.
Who remembers the government’s comments on removing the 6 month minimum service requirement for a flexible working request? That such rights should not have to be earned by any prior service, yes? The Bill states that the right to request a more predictable working pattern will apply after, well, 6 months, with no explanation for the distinction.
The Bill is a good demonstration of what happens if you draft to anticipate every possible circumstance in advance and then have to repeat it in largely similar terms for agency workers to whom a very similar set of rules will apply. The drafting as it stands is consequently very convoluted and overall harder to get anything out of than a knitted sack of coathangers.
The worthiness of the Bill’s intentions is not up for question, but it has a yawning vacuum at its heart – the question of what is meant by “predictable”, which is totally undefined. A number of quite reputable online dictionaries say with no apparent shame that this means “able to be predicted”, so that takes us little further. However, this concept is key – the proposed new Section 80 IA to be inserted to the Employment Rights Act states that an application can be made “if there is a lack of predictability” in the employee’s working pattern and the purpose of his request is to “get a more predictable working pattern”. Perhaps there will be some accompanying guidance when the time comes, but there is no current indication of what level of unpredictability that entails. After all, anyone with a contract providing for, say, 9 to 5 “plus such other hours as are reasonably necessary” surely faces a degree of uncertainty as to what those additional hours may be, and yet they cannot realistically be the target of this legislation. Or can they? The BEIS blurb states boldly that the new law will bring “huge changes for tens of millions of workers across the UK”. Tens of millions? Really? According to the government’s own statistics, the entire UK workforce runs to a little over 30 million people. As “tens” must mean at least 20, that suggests that over two thirds of the country’s workers and employees are currently on working patterns which this legislation will deem “unpredictable”. This is clearly utter nonsense or, if by any tiny chance deliberate, an obvious recipe for chaos. As drafted, the Bill also makes the question of unpredictability an objective question, not an issue for the reasonable belief of the worker. That means only the ET can decide, the thick end of a year and potentially many thousands in legal costs later, whether the pattern the worker seeks to change even qualifies at all. Given the enormous potential for claims for detriment or dismissal by disaffected workers who make unfeasible requests and then are not kept on or offered more work, something more specific is surely required. Otherwise users of zero hours labour who want to keep it that way would effectively have to establish some other reason for every single occasion on which available work is not offered to a worker who has made a request under these rules.
Out of left-field here also comes the proposal that anyone on a fixed term contract of 12 months or less will automatically be deemed to be on an unpredictable working pattern, even if that contract is as clear as day around the hours and days to be worked and (by definition) the duration of the engagement. A worker on such a contract can request that it be extended (even if that is still to less than 12 months) or converted to an indefinite arrangement instead, with all the same rights to raise grievances and claims if the employer can’t go through all the necessary hoops required to say no safely. Cue an increased number of 367-day fixed-terms, I suspect. What is perhaps predictable is the vast quantity of nakedly political fluff in the government’s press release, repeating the tired old trope around protecting the hard-working men and women of Britain against “unscrupulous employers” (i.e. those currently acting entirely within the law), “giving business the confidence to create jobs and invest in their workforce” (how, exactly?) and artfully blurring the line between having the right to request a different working pattern and your actually chances of getting it, which are dealt with as an aside in just four lines at the bottom of two pages of text.