Shireen Shaikh: The right to request predictable work patterns

Casual, temporary and agency workers will have new rights and protections if a government-backed private member's bill, the Workers (Predictable Terms and Conditions) Bill, becomes law. In particular, the right to request a more predictable working pattern might relate to the number of hours they work in a week, the days of the week on which they work, start and finish times, the period for which they are contracted to work, and other aspects of a pattern that may be prescribed by regulations.

It will give gig workers a voice and visibility that we are used to associating with employees. In turn, employers will have to factor these new rights into business models which have previously relied on one-sidedness.

Notably, contracts of 12 months or less are presumed to lack predictability. Workers would have to specify the changes they would like to see and act with the purpose of getting a more predictable working pattern. A worker would be entitled to make two requests in 12 months. Employers would have to consider the request and hold a first and subsequent meeting with the worker. They would be able to refuse the request on prescribed grounds, including insufficiency of work, cost, detrimental impact on ability to meet customer demand or other aspects of the employer's business.

According to the legislation, employers would have one month to respond to the request. An employer considering granting the request would have to make an offer within two weeks of accepting the request. In general, if a worker no longer works for an employer during the period for consideration the employer will still have to consider the request unless the worker is classified as a 'bad leaver', a term that will be made clear by special provisions in the legislation. This is quite a sea-change from the current 'out of sight out of mind' approach that applies to casual workers.

Parallels may be drawn with the right to request flexible working afforded to employees and set to be modified. Largely it is a procedural right and employers may refuse requests relatively easily. Having said that, employers may face claims for breach of the statutory requirements and may also find themselves on the receiving end of detriment and automatically unfair dismissal claims if the detriment or dismissal relates to the exercise of these statutory rights.

Shireen Shaikh is a senior counsel – knowledge in the employment, pensions and mobility team at Taylor Wessing