Our first report considers the steps that can be taken now by staffing companies and platforms to minimise the impact of this new right
The right to request predictable working hours will apply to all workers including agency workers who do not have predictable hours. It seems a "no-brainer" that it will come into force very soon: the primary legislation on which this right is based is already law – it was enacted on 19 September 2023 under the current government, albeit it is not expected to come into effect until October 2024. And so it will be relatively easy for a new government to bring it into force, with just a statutory instrument (issued under ministerial order) needed to clarify some key final details.
This is a complicated piece of legislation which gives relevant workers the right to predictable hours unless the employer/user and/or platform/agency can establish valid grounds for objecting, with the legislation listing the relevant valid grounds that can be used.
Grounds for objection
Those grounds are (i) the burden of additional costs, (ii) detrimental effect on ability to meet customer demand, (iii) detrimental impact on the recruitment of staff, (iv) detrimental impact on other aspects of the employer's business, (v) insufficiency of work during the periods the worker proposes to work, (vi) planned structural changes, and (vii) such other grounds as the Secretary of State may specify by regulations.
What may lead to disputes is the obligation of the employer/staffing company/platform to act reasonably, which may lead to tribunal challenges as to what adjustments it is reasonable for workers to expect an employer or intermediary to make.
Need for guidance
What may delay the introduction of this measure is the need to prepare guidance about the valid grounds for objecting, what the reference period will be, and finalising of anti-avoidance provisions dealing with techniques like "churn".
A consultation on a new Acas draft Code of Practice on handling requests for a predictable working pattern closed in January 2024. Once a final version is agreed and brought into force, a failure to follow the code will not, in itself, make a person or organisation liable to proceedings; however employment tribunals will take the Code into account when considering relevant cases.
A key issue for users and suppliers of agency workers and gig workers is at what stage the "right" cuts in. The Recruitment and Employment Confederation (REC) had managed to get the current government to agree a 26 week vesting period but it seems likely that a Labour government would insist on 12 weeks (coinciding broadly with the date key Agency Workers Regulations rights and Pension Act rights apply).
Preparing for requests by agency workers and gig workers for predictable working hours
Staffing companies and platforms will need to start educating users about the new rights as a matter of urgency. Many will have started planning this already.
They will need to agree with users detailed protocols for exchange of information so that the agencies/platforms can for themselves (and where appropriate on behalf of end users) set out valid statutory grounds for objecting to the requests. Where relevant, they will also need to set out and agree with users detailed protocols relating to the basis on which the predictable hours will apply. This will be a major logistical exercise for staffing companies and platforms dealing with relevant types of worker.
This may all be a particular headache for umbrella companies who may not currently have the infrastructure to manage negotiations about predictable hours. In many cases they may look to staffing companies to manage the process on their behalf, although that may further call into question whether the umbrella is the "real" employer, which may expose others in the supply chain to greater risk.
Those staffing companies and users who consider that they will not be able to give any material number of their workers predictable hours should take immediate advice about whether it will be possible to establish valid grounds for objection, and if so how, ensuring that advice is privileged if they foresee challenges.
There are also, given some of the terminology in the legislation, possible exceptions which may mean certain types of agency worker are not caught. It will be necessary to get advice about how to frame engagement models to fall within those exceptions.
Any claim made by an individual who is otherwise treated as self-employed will need to be treated carefully – consent to a request may be deemed to be an admission that the worker is, for example, a worker (that is, not in business on his own account) and therefore more likely to be inside IR35.
Our further comments about this legislation are in this Insight.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.