A new law will bring changes to those operating in the flexible work sector, writes KAREN HARVIE
One sector of the workforce that has been growing in number, while continuing to divide opinion, is the so-called ‘gig economy’, made up of thousands of workers who operate on short-term contracts or freelance work as opposed to permanent jobs. This flexibility can be beneficial for both businesses and individuals.
But there are also significant downsides – not least the absence of certain employee rights which would normally apply.
Some progress is now being made to ensure that more protection is provided that does not completely remove the benefits of the system.
One such particular step in the right direction is the Workers Bill or, to give it its Sunday name, the Workers (Predictable Terms and Conditions) Bill 2022-23.
This is a Private Members’ Bill which is being supported by the UK Government. If passed (as we expect it to be), it will come into force on a date to be fixed.
It provides for a new right for workers, including agency workers, to request a more predictable work pattern, similar to existing rights to request flexible working.
Employers will be required to introduce processes for, and to train managers in, dealing with and managing requests for changes to working patterns from workers.
All good and well, but there are certain conditions and criteria which will apply.
Firstly, qualifying service is expected to be 26 weeks. Furthermore, no more than two applications can be made in any 12 month period.
Employers must deal with a request reasonably and notify the worker of the outcome within one month.
Employers may only reject the application because they consider that one or more of the following grounds applies:
- Burden of additional costs
- Detrimental effect on the ability to meet customer demand
- Detrimental impact on the recruitment of staff
- Detrimental impact on other aspects of the employer’s business
- Insufficiency of work during the periods the worker proposes to work
- Planed structural changes
- Such other grounds as may be specified in regulations
A worker can apply for an order for reconsideration of the application or an award of compensation (which is likely to be capped at a number of weeks’ pay) on the grounds of a procedural failure or factual error. An application will be protected so the worker must not suffer unlawful detriment and dismissal will be automatically unfair (with no qualifying period).
As you would expect the UK Government tells us how positive it will be, giving tens of millions more say over their working hours.
On the other hand, unions have described it as a “weak right”.
On the face of it, this can be viewed as a progressive move but the reality is that it will not be difficult for an employer to reject an application on one of the prescribed grounds, provided the correct process is followed.
That said, pretty much all employment law and regulations are complex and the potential consequences for employers not getting it right or not following the rules and law can be costly, both financially and reputationally.
In addition, we may well have further changes to employment law with the bonfire of (now only some 800) EU Laws, but that’s another subject altogether!
In summary, if you’re not familiar with upcoming legislation, it would be wise to find out or get some advice from someone that is.
Karen Harvie is a senior associate in employment law at Aberdein Considine
This column is supported by Aberdein Considine
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