ACAS Releases Draft Code of Practice for Predictable Working Pattern Requests

ACAS has recently published their draft Code of Practice for predictable working pattern requests. This comes after the Workers (Predictable Terms and Conditions) Act 2023 received the Royal Assent earlier this year.

Previously, the Trades Union Congress (TUC) has stated that one in nine workers is in insecure work. As such, this legislation should help those who work irregularly, like on zero-hour contracts, to have better stability.

We begin by looking at the legislation yet to be enacted in more detail. Then, we discuss the draft Codes supplied by ACAS and outline the rights workers will have. To conclude, we explore the steps workers could take should their rights be breached.

The Law on Predictable Working Pattern Requests

The Workers (Predictable Terms and Conditions) Act 2023 is expected to be effective in roughly a year. This means that workers can soon make a predictable working pattern request.

The legislation will apply to eligible:

  • Workers with uncertain patterns concerning when and how long they work
  • Workers who are contracted for 12 months or less
  • Agency workers

The purpose of making a request is to enable such workers to change their working patterns to more predictable ones. For workers on a fixed-term contract of 12 months or less, this includes extending or making it permanent.

Within any 12-month period, a worker will be able to make two requests for a predictable working pattern. Any request should be made in writing, stating that it’s a statutory predictable working application and outlining the proposed changes and effective start date.

What does the ACAS’s draft Code of Practice say?

Following the Royal Assent of The Workers (Predictable Terms and Conditions) Act 2023, the ACAS draft Code of Practice for predictable working pattern requests has been released. The code’s purpose is to inform employers, agencies and eligible workers of their rights and responsibilities created by the legislation. It will also assist tribunals in relevant cases.

The draft clarifies the law in the act, including overlaps with employees’ right to make a flexible working request. It explains that when the purpose of making a flexible working request is to make one’s work more predictable, it will count both as a flexible and predictable working request.

Handling Predictable Working Pattern Requests

The ACAS draft Code of Practice also outlines how an employer or agency should handle a request for predictable working. It explains that requests must be handled reasonably. This includes considering the worker’s current position and the effects of a change on all parties involved.

Unless an employer or agency has a valid reason to reject a worker’s request, they must accept it. Valid reasons for rejecting a request include:

  • The burden additional costs linked to the change will provide
  • Insufficient work being available during the proposed periods of work
  • The ability to meet customer demand being detrimentally affected
  • The recruitment of staff being affected detrimentally
  • Other aspects of the business being detrimentally affected
  • The proposed changes not suiting planned structural changes to the business

Furthermore, if the rejection of a request is decided, employers and agencies should consider alternatives before they proceed. They must also ensure their decision doesn’t discriminate against individuals based on their protected characteristics outlined in the Equality Act 2010. If this was found, a discrimination claim may be brought against them.

The draft highlights that employers and agencies must deal with a request and any appeal made by a worker within one month. Before deciding, they should arrange a meeting with the worker to discuss the request to ensure it’s fully understood. 

Although not a legal requirement, it’s outlined that it’s good practice for the employer or agency to allow the worker to be accompanied during the meeting. This could be by a colleague, trade union representative, or an official employed by a trade union.

Once a decision has been made, the employer or agency should provide the outcome in writing. This includes how and when a worker can appeal should the request be rejected. The decision should be communicated promptly and outline the reason for it.

Workers can appeal the decision if employers or agencies reject predictable working pattern requests. They should outline the reasons for their appeal, like if they believe it hadn’t been handled reasonably.

Once an appeal has been received, the employer or agency should arrange a meeting with the worker to discuss it. The appeal should be dealt with impartially, ideally by a manager not previously involved. Once a decision is made, this should be communicated in the same manner as the original decision.

What if Predictable Working Pattern Requests Lead to Dismissal?

ACAS’ draft code briefly discusses dismissals linked to predictable working pattern requests. It explains that workers must not be subject to a detriment due to making a request or beginning legal proceedings due to their rights associated with such a request being breached.

If a worker is dismissed due to making a request, they may be subject to a detriment. They could potentially make an unfair dismissal claim to an employment tribunal in such circumstances.

Redmans Solicitors are well equipped to discuss any questions you have about requesting a predictable working pattern. Once this legislation comes into effect, we could advise you about how to make a request or proceed if your rights are breached.