Last week saw the publication of the draft Acas Code of Practice for handling requests for a “predictable working pattern”. When we previewed the draft Bill in February, we noted here Knew this would happen – entirely predictable problems with new working patterns Bill (UK) the lack of any definition of “predictable” despite the obvious importance of that concept to a set of rights based entirely on its absence. Perhaps the actual Act would be better than the Bill, I hoped, but unfortunately not, as we noted here Knew this would happen, Part 2 – predicted problems persist in working patterns legislation (UK). With increasing desperation, perhaps the promised Acas Code would help, yes?
As it turns out, no. Not even slightly. The new draft Code sheds no light at all on what constitutes a “lack of predictability”. The non-binding Foreword implies that you will see it mostly in zero-hours contracts and agency working, but that is not what the Act says. Nor is it reflected in the bombastic claims made for the Bill when it was first introduced, which spoke of its helping “tens of millions” of workers and so could not possibly have been limited in that way.
The draft Acas Code in fact compounds the problem to some extent by some unhelpful vagueness in its language – the intended new right is referred to in two different ways, to request a predictable working pattern and separately, to request a more predictable working pattern. That leaves the reader unclear – is a “lack of predictability” a relative or an absolute test? If it is an absolute test, what are its parameters? If it is a relative test, relative to what?
But just pretending for a moment that this gigantic crack in the viability of the new rules does not exist, what can we learn from the draft Code about an employer’s obligations when a request for a predictable working pattern is made? Much of the Code is a straight lift from the equivalent guidance on the flexible working rules, but here are some particular points for employers to note:-
- Unlike the flexible working rules and indeed the new Act itself, the Foreword to the draft Code says that reasonable consideration of the request includes “taking account of the reasons for the individual’s request“. The Code itself does not go so far, stating only that such consideration would entail “assessing the effect of the requested change for both the employer and the worker“. The problem with the Foreword’s suggestion is how you can take the employee’s position into visible account in circumstances where the only permissible reasons for rejecting such a request exclusively concern the adverse impact on the employer. I do not read the draft Code as requiring an employer which has good reason to say no to say yes just because the employee’s need is very pressing, or as allowing an employer which could have said yes to say no because the employee’s reason for wanting greater predictability is a bit thin. Our advice to the employer must therefore be to hear what the worker says on the point, but ultimately to make its decision based only on the permissible business reasons in the new Act (cost, detrimental impact on various aspects of the business, etc).
- Flexible working requests made with the “purpose” (not “effect”, though that would have been far easier to apply) of obtaining a more predictable working pattern will also count as one of the employee’s two permitted requests per year under the predictable working pattern regime.
- The whole process from initial request to final decision (including any appeal) should be a month or less. If there is any likelihood of your overrunning that limit, best practice will be to keep the worker informed of the reason for the delay and the likely ETA for an outcome.
- “The person holding the meeting should have sufficient authority to make a decision“. This is a nice idea in principle but very probably unworkable in all but the smallest companies. In larger entities, the likelihood will be that the person best qualified to understand whether the changes sought would be viable in practice and the person authorised to make the potentially far-reaching structural or organisational decisions which may be required to effect them will not be the same. In our view, it is better that the application is considered by someone who knows what they are talking about but needs someone else to authorise any resulting changes, than by someone who could make changes very easily but is not qualified to determine whether he should.
- There is no statutory right to be accompanied at meetings convened to discuss applications for predictable working patterns, but there is rarely any good reason to say no, so we would tend not to take the point.
- There are then some particularly odd provisions to the Code around the employer’s obligations if the worker’s employment or engagement terminates mid-way through the request process. Acas says that in such a case the employer still has to consider the request and grant it unless (a) it has a good business reason; or (b) the employer resigned (except in circumstances amounting to constructive dismissal); or (c) the worker was terminated on unrelated grounds and the employer acted reasonably in deciding to terminate the contract on those grounds. This seems like a clumsy and unnecessary elision between the unfair dismissal regime and the predictable working pattern arrangements – what has the reason for the termination got to do with whether the employer should sensibly have to consider, let alone grant, a request from someone who won’t be there to benefit from it? And how does the requirement for reasonable belief on the employer’s part apply where the employee has less than two years’ service and so cannot claim ordinary unfair dismissal anyway?
- Employees and workers benefit from protections against detriment and dismissal from a very low threshold indeed, including a worker merely stating that there are circumstances which could constitute the basis for a request under the Act, whether or not they do or even intend to take that step. We cannot blame Acas for that because it is merely relaying what the Act says. However, if ever there were overreach in an employment statute, this is surely it, leaving employers with an even greater burden of self-justification in relation to their daily decisions.