Employment law developments: predictable working patterns and "reasonable steps" to be taken by trade unions during strikes

As we enter into the final months of 2023, the Government has announced plans to introduce a swathe of legal reforms in the employment world. Whilst we await to see how these work in practice, there are two legal developments to note that have been confirmed.

The Workers (Predictable Terms and Conditions) Act 2023

There will be some of us who remember the Taylor Review of modern work practices which was published back in the heady days of 2017, when global pandemics were still confined to disaster movies and Big Brother UK was still consigned to history. One of the areas of concern identified in the review was the “one-sided flexibility” that was enjoyed by some employers when engaging workers in the evolving labour market. This was found to be a typical characteristic of the gig economy, with workers being given no guarantee of work but employers expecting them to be available on short notice. Whilst proposals for the right to reasonable notice of work schedules and compensation for short notice shift cancellations have fallen away, the Government supported a Private Members’ Bill addressing the issue, which received Royal Assent on 18 September 2023 and has become the Workers (Predictable Terms and Conditions) Act 2023. In high level terms, the Act introduces a new statutory right for workers to request a more predictable working pattern.

While there is still no date of implementation of this Act, we thought it would be helpful to set out in more detail what this might mean in the future. This is likely to be most relevant in industries which rely on more casual work and where shift patterns vary as rotas change, but given the wide-ranging wording in the Act other contracts could be caught.

What is the right to request?

Workers have the right to request predictability in their work pattern relating to the number of hours worked, their working days and times, and the length of their contract. They may make two applications in any 12-month period.

Who has the right?

Workers (this includes employees) and agency workers who have “a lack of predictability” in their work pattern. The most obvious arrangement captured are zero hours contracts, but arguably contractual arrangements with specific core hours of work which can be varied could be caught too. Importantly, there is a built-in assumption in the Act that fixed term contracts of 12 months or less lack predictability. The qualifying period for this right is likely to be 26 weeks’ service, and these are unlikely to be continuous given the nature of the Act.

What are employers required to do?

When employers (and work agencies) receive a request for a predictable working pattern, they must deal with it reasonably and provide the worker (or agency worker) with their decision within a month. If they grant the request, the new terms must be offered within two weeks. If the request is refused this must be for one of the specified grounds in the Act, such as the burden of additional costs.

Helpfully, ACAS is currently consulting on a draft Code of Practice to provide guidance on how to make and handle requests for more predictable working patterns. This sets out good practice principles for organisations, including:

• Meeting with workers to discuss requests, allowing them to be accompanied where reasonable.
• If a request is refused, setting out any additional information to help explain their decision.
• Allowing an appeal where a request is refused.
  
  

The consultation remains open until 17 January 2024.

Code of Practice on trade union’s duties in the Strikes (Minimum Service Levels) Act 2023

Earlier this year, we wrote about the Strikes (Minimum Service Levels) Bill here and what it would entail. As many of you will know, that bill achieved royal assent on 20 July 2023, passing largely unamended despite strong opposition from trade unions and attempts to amend it by the House of Lords. 

In very high-level terms, under the Act the Government can mandate the minimum service levels in six industries including the health services, education services, and transport services. When a strike is called, employers will be able to identify members of staff that are required to work during the strike in order to secure that level of service and issue them with a work notice at least seven days before the first day of the strike. Any workers who have been issued with a work notice but take part in the strike regardless would no longer have the right to automatic protection from unfair dismissal. Any trade union which fails to take reasonable steps to ensure that all members identified in the work notice comply with it could be faced with a potential claim.

This summer the Government consulted on a draft statutory Code of Practice which provides guidance on what the “reasonable steps” required of the unions are. Initially, the draft Code included the step that unions should send a communication to its wider membership explaining that a work notice has been given and how that notice will affect the strike. However, this was removed following the consultation on the basis that it would impose additional burden on unions.

This month, the Government published its consultation response and published an updated Code of Practice, which sets out four reasonable steps that trade unions should take to meet their duties, which in summary are:  

1. Identifying members in a work notice.
2. Encouraging relevant members to comply with the work notice by sending a “compliance notice” to each of them encouraging them to work and not strike.
3. Instructing picket supervisors to use reasonable endeavours to ensure that the pickets avoid the members identified in the work notice as far as reasonably practicable.
4. Ensuring they do not undermine any of these steps and correcting actions by union officials/members which may do.
   
   

The Code provides further details on each of these steps including a draft compliance notice for unions to send to the relevant members.

The updated Code of Practice will now be laid before Parliament and is expected to come into force in mid-December.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, November 2023