The Workers Act 2023: What does it mean in practice?

Anglia Ruskin law student Olga Kyriakoudi explores its implications

The Workers (Predictable Terms and Conditions) Act 2023, which gained approval on September 19, 2023, marks a significant development in labour legislation in the United Kingdom.

This legislation is scheduled for implementation in the near future, and its primary objective is to establish a framework through which employees and agency workers on flexible contracts, including zero-hour and temporary agreements, can request more consistent and predictable work schedules. This article delves into the legal and political implications of this ground-breaking legislation.

Legal implications

In the ever-evolving landscape of UK employment law, the introduction of the Workers (Predictable Terms and Conditions) Act 2023 and the Employment Relations (Flexible Working) Act 2023 has added a layer of complexity and uncertainty. These legislative changes have far-reaching legal implications, particularly regarding the issues of irregular and uncertain working hours.

The Workers (Predictable Terms and Conditions) Act 2023 grants employees who have completed a minimum of 26 weeks with their current employer the right to request more predictable work schedules. To exercise this right, individuals must submit well-defined requests specifying desired changes and proposed commencement dates for the new terms.

While employers are obligated to respond within a one-month timeframe, they retain significant discretion in evaluating and accepting or rejecting these requests. Factors such as projected operational costs, service disruptions, recruitment implications, and more come into play. If approved, employers must promptly update employment terms to align with the new arrangements within two weeks. Non-compliance may lead to Employment Tribunal claims, with potential consequences including reconsideration of the application or capped compensatory damages.

The Act aims to strike a balance between flexible working options for employees and accommodating business operational needs while addressing unfair practices. It seeks to provide workers with greater certainty regarding working hours and income. To aid understanding, further guidance is anticipated from the Advisory, Conciliation, and Arbitration Service (ACAS) before the Act takes effect.

Interestingly, there is overlap between this Act and the right to request flexible work. The recently enacted Employment Relations (Flexible Working) Act 2023 introduces relatively limited changes to the existing regime. The reasons for refusing a flexible working request remain largely unchanged and have been duplicated in the Predictable Terms and Conditions Act, simplifying the identification of reasons for refusal.

Flexible work requests often involve potential discrimination issues, requiring employers to conduct a comprehensive assessment before refusing. For example, requests due to caregiving responsibilities may raise concerns about indirect sex discrimination, while those accommodating disabilities may invoke disability discrimination considerations. In contrast, requests for more predictable working hours are less likely to involve discrimination issues, though exceptions may apply based on the request’s underlying reasons.

Moreover, there is potential overlap where a request for flexible working could fall under the predictable work regime if it aims to achieve a “more predictable work pattern.” This might count towards the maximum limit of two predictable working requests within 12 months, even if unintended. Additionally, the procedural framework for handling these requests may be unclear, with differences such as shorter decision-making timescales under the Predictable Terms and Conditions Act further complicating matters.

To sum up, these legislative changes introduce a complex interplay between flexible working and predictable working hours. While the Acts aim to enhance worker rights and promote stability, their implementation may pose challenges for both employers and employees. Careful consideration, along with potential clarification and guidance, will be essential to navigate this evolving landscape effectively. Adding to the intricate landscape, the imminent Retained EU Law (Revocation and Reform) Act introduces heightened uncertainty in the realm of employment law, potentially impacting pivotal legislation. On May 10, 2023, the government, in response to considerable public outcry, abandoned the proposed sunset clause initially designed to automatically revoke the majority of retained EU law by the end of 2023. Instead, the House of Lords, recognizing the public sentiment, compelled the government to replace the contentious ‘sunset’ clause with a schedule outlining approximately 600 items of retained EU law slated for revocation on December 31, 2023.

Despite this adjustment, the government maintains its commitment to expunge three crucial EU law principles—supremacy, direct effect, and general principles—from UK law by December 31, 2023. Consequently, any retained EU law remaining on the statute book after this date would not be interpretable using these principles. This move introduces a significant challenge, as lawyers will no longer have the capacity to predict the impact of workers’ rights or employers’ obligations reasonably and accurately. The lack of clarity extends to workers who will face uncertainty regarding the scope, meaning, application, or entitlement to their working rights.

Legal certainty, a cornerstone of an efficient legal system, is jeopardized when the settled and predictable meaning of a substantial body of employment law is eradicated, leading to uncertainty and unpredictability. This legal uncertainty has broader implications, potentially undermining growth plans as both employers and employees lack clarity on significant aspects of employment law affecting investment and labour costs.

Political implications

From a political perspective, the Workers (Predictable Terms and Conditions) Act 2023 aligns with the Conservative government’s approach of regulating rather than outright banning zero-hour contracts, which currently engage around 1.03 million individuals in the UK. These contracts involve an agreement where employers are not obligated to guarantee a specific number of working hours, and employees are not obliged to accept offered work while retaining the freedom to work for other employers.

Over the past decade, Conservative-led governments have taken measures to address concerns related to zero-hour contracts, particularly focusing on regulating exclusivity clauses. These clauses, common in employment contracts, restrict the type of business or role an employee can pursue after leaving their current position. While not problematic in contracts with regular hours and pay, exclusivity clauses can disadvantage those on zero-hour contracts by implying a lack of guaranteed paid work and prohibiting them from working elsewhere.

To tackle this, the Small Business, Enterprise and Employment Act 2015 rendered such clauses unenforceable in zero-hour contracts. Recommendations from the Taylor review resulted in additional changes, including the right to an itemized payslip, details of core employment terms, and an extension of the reference period for calculating holiday pay. However, some promised reforms, like the right to request a regular employment contract and maintaining continuity of employment for breaks under four weeks, are yet to be implemented.

It’s essential to note the differing approach of the Labour Party, a political adversary, advocating for a stricter stance on zero-hour contracts, including a proposed ban and the right for workers with regular hours to a standard employment contract. This political divergence reflects broader perspectives on employment rights and contract flexibility in the UK.

Despite post-Brexit efforts by the Conservative Party to amend employment law, the envisioned economic freedom for deregulation and rapid growth remains elusive. The Trade and Cooperation Agreement allows potential conditions for policy drift, with the Conservative Party leaning towards repealing EU retained law. However, criticism and legal commitments may impede this process. Conversely, Labour-led governments are expected to minimize policy drift, as seen in their Employment Rights Green Paper outlining a vision for UK employment legislation up to 2030.

Yet, policy drift poses risks for UK workers, and the presumed benefits of repealing EU employment legislation remain uncertain and may not align with the claims of Eurosceptic proponents. In 2016, additional worker protections were introduced, allowing individuals with contracts featuring exclusivity clauses to bring claims for unfair dismissal or claim a detriment for non-compliance. The Workers (Predictable Terms and Conditions) Act 2023 could be seen as a positive step forward. On the other hand, its effectiveness will only become clear with time and practical application.

Conclusion

In conclusion, the Workers (Predictable Terms and Conditions) Act 2023 represents a significant milestone in UK labour legislation, ushering in a new era of rights and protections for workers on flexible contracts. However, its introduction also introduces a complex legal landscape with potential overlaps and uncertainties, particularly in relation to the right to request flexible working.

While the Act aims to provide employees with greater predictability and stability in their working lives, it also places a significant responsibility on employers to carefully consider and respond to requests for more consistent hours. The Act’s interplay with the recently enacted Employment Relations (Flexible Working) Act 2023 adds another layer of complexity, raising questions about the boundaries between these legislative frameworks.

From a political perspective, the Workers (Predictable Terms and Conditions) Act 2023 aligns with the Conservative government’s strategy of regulating rather than outright banning zero-hour contracts, indicating progress in fortifying workers’ rights. However, the delayed implementation of recommendations from the Taylor review raises concerns about the speed of reform. The contrast between the Conservative approach, favouring regulation, and the Labour party’s call for a stricter stance, including a zero-hour contract ban, highlights the ongoing debate over employment rights and contract flexibility in the UK. This act may signify the initial step by the Conservative government toward realizing their post-Brexit vision of economic deregulation.

In this dynamic landscape, employers, employees, and legal professionals must remain vigilant, adaptable, and attentive to forthcoming guidance from ACAS. Staying informed and prepared for the challenges ahead is imperative for all stakeholders in navigating the evolving scenario.

Olga Kyriakoudi is a third-year law student at Anglia Ruskin University. She is President of the European Affairs Society and volunteers at the University’s Law Clinic.