Casual Working is here to stay
Recent data from the Office for National Statistics, shows a record high in the use of zero hours contracts. Scotland has the highest rate of use of zero hours contracts at 3.9%, with the UK average standing at 3.4%. The accommodation and food sector is the highest user by far with a reported 28.7% of workers being engaged on zero hours contracts.
In 2017, the Taylor Review on modern working practices and the gig economy recognised the importance of flexibility in working arrangements. The Taylor Report acknowledged concern about the way some employers use flexibility in working arrangements to “transfer risk to, and exert control over, workers”. It recommended the introduction of more flexible working arrangements to support workers who experience ‘one-sided flexibility’.
Predictable Terms and Conditions for Casual Workers.
In February 2023, the UK government announced its support for a private member’s bill, the Workers (Predictable Terms and Conditions) Bill (“the Bill”), which is planned to bring forward huge changes for casual workers and employees including agency workers.
It would give workers (including those employed on fixed term contracts of 12 months or less) the right to apply to their employer for a change in terms and conditions of employment if there is a lack of predictability, in relation to the work that the worker does where the change relates to the worker’s work pattern, and the worker’s aim is a more predictable work pattern. There is a short qualifying period of being employed in the month immediately before the application.
Employers will be required to deal with the application reasonably. They will have to notify the decision on the application within a month of the application. Reflecting the existing statutory flexible working request scheme, employers may reject the application on particular grounds: (i) the burden of additional costs, (ii) detrimental effect on ability to meet customer demand, (iii) detrimental impact on the recruitment of staff, (iv) detrimental impact on other aspects of the relevant business, (v) insufficiency of work during the periods the worker proposes to work, (vi) planned structural changes, and (vii) such other grounds as may be laid down by the Secretary of State.
Similarly, agency workers contracted to perform work or services personally would have the right to make a request to either a temporary work agency (“TWA”) or a hirer for a more predictable work pattern and with the same obligations as for a direct employer, to deal with the application, with the same bases for refusal, and there are detailed provisions about how the duties apply to the TWA or hirer respectively.
Workers will be able to make up to 2 statutory requests a year.
A worker if the employer, TWA or hirer fail to comply with the statutory scheme, or in respect of rejecting the application the worker will be able to complain to the Employment Tribunal. If it finds the complaint well founded, it will be able to make a declaration to that effect; order reconsideration and/or award just and equitable compensation up to a maximum level. Under the current statutory flexible working request scheme compensation is capped at eight weeks’ pay.
If an employee is dismissed and the reason (or, if more than one, the
principal reason) for the dismissal is that the employee made (or proposed to make) a statutory application for predictable hours; or that they brought proceedings that the employer failed to comply with the statutory scheme, or alleged that there were grounds to so, their dismissal will be automatically unfair under the Bill’s proposed amendments to the Employment Rights Act 1996.
What is next?
The second reading of the Bill in the House of Lords is on 16 June, so, all going as planned, it would become law in the next six months.
The Government initially proposed a number of measures announced in 2019 in an anticipated Employment Bill which proposed introduction of a package of policies including:
- supporting parents of babies who need neonatal additional care with paid neonatal care leave
- requiring employers to ensure that all tips, gratuities, and service charges received must be paid to workers in full
- offering pregnant women and new parents greater protection against redundancy
- entitling unpaid carers to a period of unpaid leave to support those most in need
- providing millions of employees with a day one right to request flexible working, and a greater say over when, where, and how they work.
The Employment Bill was not advanced and instead, these measures are progressing. At the end of May 2023, Royal Assent was given to three new acts, which mean that parents and carers will benefit from:
- Up to 12 weeks of paid neonatal care leave for employed parents whose children are admitted to neonatal care
- Redundancy protection for pregnant women and new parents extending existing redundancy protections to cover pregnancy and a period of time after parents return to work
- A new entitlement for unpaid carers to a week of flexible unpaid leave a year, for employees who are caring for a dependant with a long-term care need.
These are in addition to existing provisions, but there is not set time line yet for the detailed secondary legislation or implementation date.
With seasonal working increasing into the summer period, the trend for using casual workers seems likely to continue, before workers will have the right to more certainty in working arrangements.
Katy Wedderburn is a Partner at gunnercooke and is accredited as a specialist in employment law and discrimination law by the Law Society of Scotland. You can contact Katy here.