The Workplace Prescription
Workplace Q&As and the latest news in employment law and HR
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Government scraps the right to request predictable working hours legislation
The recent decision by the current government to refrain from introducing secondary legislation for the Workers (Predictable Terms and Conditions) Act 2023 has raised questions about the future of workers' rights in our country. This Act, which received Royal Assent under the previous Conservative administration, was initially slated for implementation in September 2024. However, its enactment hinges on commencement regulations and additional secondary legislation, both of which remain pending.
Sources within the government have reportedly confirmed that the Labour administration has no intention of implementing this Act. Their reasoning stems from a commitment to pursue more robust legislation that would offer workers enhanced rights compared to those outlined in the current Act.
The Workers (Predictable Terms and Conditions) Act 2023 was designed to amend the Employment Rights Act 1996. Its primary aim was to grant workers a new statutory right to request predictable working patterns in situations where their current arrangements lack consistency. This unpredictability could manifest in various forms, such as fluctuating work hours, inconsistent working days, or employment on short-term contracts lasting twelve months or less.
However, it's crucial to note that this Act would have only provided workers with the right to request a predictable pattern, functioning similarly to the existing right to request flexible working. It fell short of guaranteeing workers an actual predictable working pattern.
In contrast, the Labour government's proposed legislation aims to establish a statutory right for workers to have contracts that accurately reflect their regularly worked hours. This assessment would be based on a twelve-week reference period. Importantly, this would be a right to have, rather than merely a right to request, representing a significant strengthening of workers' rights.
The government's new approach is expected to be introduced through the forthcoming Employment Rights Bill, which is anticipated to be published in October 2024. This development signals a potential shift in the landscape of workers' rights, moving towards more concrete protections for predictable and stable working conditions.
When the Bill is published I’ll ensure you are the first to know what the proposed changes to employment law will entail.
Q&As
Unfair redundancy selection. Do I have a claim?
Q. Hi Tim, I was given notice that my role was at risk of being made redundant. There is a colleague who has the same role as me (on contract) who was offered a different role in another team but still within the wider team we sit in. Do I have a claim for unfair dismissal as I wasn't offered this role?
A. Possibly! Employers are required to follow a fair and transparent process when making redundancies. This includes using objective criteria to decide who is at risk. If two or more people are doing the same or similar roles, both should be included in the selection pool for redundancy and assessed against the same criteria.
Employers must also consider whether there are suitable alternative roles available within the organisation and offer these to employees at risk of redundancy. If a suitable role is available, it should be offered to all employees in the selection pool, not just to a select few, unless there are specific reasons (e.g., one person is clearly better qualified for the new role based on objective criteria).
If your colleague was offered a different role and you were not given the same opportunity, it could potentially give rise to a claim for unfair dismissal, especially if:
You were both in the same selection pool for redundancy.
The new role was suitable for you as well.
There was no fair or objective reason why the role was offered to them and not you.
I suggest you ask your employer for a detailed explanation of how the redundancy decision was made, including the criteria used for selection and the consideration of alternative roles.
If you’re not satisfied with their explanation, you might consider raising a formal grievance, because employment tribunals always look favourably on you if you attempt to resolve the situation with your employer first. It might also be worth speaking to your union representative if you are a member.
While every case depends on its specific facts, if your employer did not consider you for a suitable alternative role without good reason, you could indeed have grounds for a claim of unfair dismissal. Document everything and try to address the matter internally first, but don’t be put off by the tribunal process.
One final point. You must have two years of continuous service to claim ‘ordinary unfair dismissal’.
Calculating holiday entitlement in the first year of employment
Q. Just wanted to double check holiday entitlement with you as I’m having a disagreement with a colleague. He’s only just started (6 weeks) and says he is entitled to take two weeks of his holiday entitlement.
Based on 28 day’s paid holiday a year, I believe that he can only build up holiday entitlement as he goes, but he’s adamant he can take as much as he likes immediately. Is he right?
A. Your understanding is correct. Employees holiday entitlement over time. For a full-time employee entitled to 28 days of holiday per year, this accrues at about 2.33 days per month. After 6 weeks, your colleague would have accrued roughly 3.5 days.
In their first year, employees can typically only take the holiday they have accrued. While some companies allow more generous terms, it’s not a legal right. So, your colleague isn’t automatically entitled to take two weeks of holiday after just 6 weeks of employment—it’s at the employer’s discretion.
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The legal bit. . .