Flexible working

The so-called 'gig economy' has exploded in recent years. This is the situation where workers do not have fixed contracts of employment, or indeed, any contract at times. It offers the chance to work flexibly – but is also open to abuse by employers. Recent cases have also established that gig economy workers have fewer employment rights than those on more traditional working contracts.

The Advisory, Conciliation and Arbitration Service (Acas) works with millions of employers and employees every year to improve workplace relationships. It is an independent public body that receives funding from the government. Acas has produced a draft Code of Practice on handling requests for a predictable working pattern.

The Workers (Predictable Terms and Conditions) Act 2023 is an Act which attempts to redress the balance to some extent in relation to gig economy workers. The Act received royal assent in September 2023. The new legislation will give employees and workers a right to request a predictable work pattern under the Employment Rights Act 1996, subject to certain eligibility criteria.

Acas has been asked by the Department for Business and Trade to prepare a new statutory Code of Practice to provide guidance on new legislation which will give certain workers a right to request a predictable working pattern. They will also be producing new non-statutory guidance to sit alongside the Code.

The Foreword to the Code explains that flexible contracts, such as zero-hours contracts or agency working, can benefit organisations and individuals where they meet the needs of both parties. These contracts should always be used responsibly and fairly. This includes regularly reviewing these arrangements to ensure they are working in both parties' interests. The Foreword emphasises that all requests for a more predictable working pattern must be handled reasonably and rejected only where there is a genuine business reason as set out in the legislation.

The draft Code sets out good practice principles including:

• allowing workers to be accompanied at meetings to discuss a request
• that organisations should set out any additional information which is reasonable to help explain their decision
• that organisations should allow an appeal where a request has been rejected.

The draft Acas Code is intended to support employers, temporary work agencies, hirers, workers and representatives to understand their rights and responsibilities regarding the new right to request a predictable working pattern. The Code will not be legally binding but will be taken into account by courts and employment tribunals when considering relevant cases.

Employers should consider taking specialist advice to ensure that they are fully compliant with the new legislation. How and where employees work will continue to be an area of tension for many years to come.

To discuss this or any other employment matter, contact us.