Digital law

Back in February I offered here some thoughts on the main practical problems implicit in what was then the Workers (Predictable Terms and Conditions) Bill.  It was a mess, missing explanations of key concepts and grossly over-engineered for its objectives. That makes it all the more depressing to report that it has now received Royal Assent in (so far as I can see on the main issues, at least) completely unchanged form.  Yes, for the princely sum of just £8.14, you can now get your very own copy of the Workers (Predictable Terms and Conditions) Act 2023.  Pages 2 and 4 of this publication are completely blank and so probably represent the high points of this new legislation, as the rest goes downhill fast.  Don’t say you weren’t warned.

Explanatory Notes and Acas Guidance will be available to cast some light on what the new Act is all about, but the general idea is to “give workers and agency workers the right to request more predictable terms and conditions of work” through a regime superficially similar to the existing flexible working rules – employee has right to ask and employer can say no only on certain specified grounds, with compensation if the employer mis-steps in the process and suitable protections for those subjected to detriment or dismissal for seeking to exercise that right.

So far so good, if you like that sort of thing.  However, the starkest difference between the two regimes, and one which goes to the heart of the new rules, is that everyone knows what flexible working looks like (fewer hours, different hours, hybrid/WFH), but “predictable” is wholly undefined.  So when the new Act says that a worker can make an application under it “if there is a lack of predictability in relation to the work that the worker does … as regards any part of the worker’s work pattern … and the worker’s purpose in applying for the changes to get a more predictable working pattern“, you have an immediate qualifying question – what on earth is a “lack of predictability“?

If you can’t answer that with relative certainty every time, then the new Act can’t work.  Otherwise every claim for a more predictable pattern will have to begin with an analysis of the old one and whether, and if so, in what respect and to what extent, it lacked predictability.  Explanatory Notes to statutes are not law, however official they may be, and while Acas has said that its intended Guidance will provide a steer on how to handle requests, it clearly cannot be responsible for answering a question like this which goes right to the core of what the new legislation actually says.

This is a bad case of mission-creep.  The Act has its genesis in the Taylor Good Work Report and the concerns expressed there about more-or-less marginal workers on zero hours contracts who could never safely assume that work would be there if they waited, even though it generally was.  As a result, they could not make plans or budgets or know when they were working and when they were not.  Those workers were seen, in many cases quite correctly, as being denied rights and certainties wholly unnecessarily because actually the work was almost always there and the employer knew it.  If this Act touched only those people (a relatively tiny proportion of the UK workforce) then one could only applaud it.  But it does not.  The original Government press release around the Bill referred to its improving the rights of “tens of millions” of workers, a piece of risible political hyperbole meaning, even construed conservatively, two out of every three employees in the country.

Which brings us back to the original question – what is there in that many contracts of employment or engagement as worker or agency worker which currently amounts to a challengeable “lack of predictability” in the working pattern of those individuals (“working pattern” meaning number of hours, dates and times of work, contract period)?

Surely it cannot include the possibility that sometimes you have to stay a bit late to get something done?  If you have core hours, does some required flexibility around them qualify?  Does it depend on the nature of the job or the person’s seniority or whether they are paid a salary to match the sort of body-and-soul commitment which could mean that they are not strictly master or mistress of their own time?  No answers to any of this appear in the Act, not to the question of whether a lack of predictability is an absolute or relative term.  And if relative, relative to what? The atomic clock? A timed-to-the-minute 9-5 working day where everyone is gone by 5.01? Or the apparently even more inevitable appearance of silly flag-waving and over-statements in government press releases?

Anyway.  So let’s assume we can bridge this gaping hole in the practical enforcement of the Act and get into some of the detail.  This is a similarly unrewarding in a number of respects, but chief amongst those in this or indeed any other employment legislation ever anywhere is this – in an amended section 80IA(3) Employment Rights Act, a fixed term contract of 12 months or less is to be treated as lacking predictability “as regards the period for which the worker is contracted to work”.  But surely the clue is in the words “fixed term“, the very definition of predictability around contract length.  There is no rationale provided for this patently contradictory wording and its only likely consequence is an increase in the number of 367 day fixed terms. If the employer gets this wrong – fails to rule on the application within a month, relies on incorrect facts or doesn’t put the new contract terms into effect within two weeks of agreeing them – then the ET may order reconsideration of the application and/or award compensation of up to a number of weeks’ pay to be determined by the Secretary of State.  However, it isn’t really any of that which is the problem, since that is all notionally within the control of the employer.  Instead the real threat in this legislation lies in the amended section 47 EA ERA 1996 – “a worker has the right not to be subjected to any detriment by any act or deliberate failure to act by the worker’s employer done on the ground” that the worker had made a predictable pattern request, sought to enforce it or (my word, this is bad) “alleged the existence of any circumstance which would constitute a ground for bringing such proceedings“.  There seems not even to be any requirement that such proceedings are threatened in any way. So as from when this is scheduled to come into force this time next year, all I have to do as your worker is tell you that I believe my working pattern to lack predictability (which you will never be able to show was untrue or said in bad faith because you no more understand what it means that I do) and anything you do thereafter which I don’t like, I can sue for.  All I need is six months’ service and no perceptible sense of shame and I am off to the races.  This ill-considered new Act extends a relatively niche-interest right far beyond the point where it could conceivably be said to be needed and in the process creates a regime which has vastly greater potential for abuse than benefit.