Predictable hours legislation: a good deal for gig economy workers, at last

It may have flown under the radar, but new ‘predictable hours’ legislation is an important development for temporary workers – ranging from ‘gig economy’ and casual workers to interims and freelancers, writes Julia Kermode, founder of IWORK.

A new framework for those who sit in between the two main statuses

To take effect in the UK soon, the new legislation will form part of the Employment Rights Act (1996) and will offer new protections and rights to anyone with the ‘worker’ employment status.

The lesser known of the three employment statuses, a ‘worker’ sits somewhere between self-employment and employment. Such ‘workers’ are generally engaged on a casual or irregular basis and are entitled to accept or reject any work they’re offered.

It’s all in the ‘how’

People on ‘zero-hours’ contracts are generally ‘workers’ rather than employees, and freelancers can also be classified as ‘workers’ for employment rights purposes, even if they are taxed as self-employed. As you can see, it’s a bit of a grey area!

In part, the ambiguity arises from how ‘workers’ perform their jobs; how much they’re controlled and whether they are truly independent.

The Uber case

Many people in the gig or platform economy are engaged as self-employed, but the characteristics of how they do their job (for example, with a high level of control by the app or platform engaging them), might actually confer ‘worker’ status.

Uber is the best-known example. In a high-profile case, self-employed drivers took Uber to court seeking workers’ rights, such as paid holiday – which they won.

So, if you sound like one of these ‘workers’, the predictable hours legislation might be of interest. So what on earth is it all about?!

What does the predictable hours legislation cover?

In essence, predictable hours legislation allows ‘workers’ – in the employment status sense – to apply for a more predictable work pattern. This includes:

The number of hours that the worker works;
The days of the week – and the times on those days – when the worker works;
The worker’s contracted period.

Currently, some workers suffer by virtue of their work pattern, putting their lives on hold and being left waiting in case of a last-minute shift, or losing income due to shifts being moved at short notice.

26 weeks = apply for some stability

So the predictable hours legislation aims to bring these workers some stability, with a guarantee of when they are required to work, and with hours that suit them.

Workers will need to have worked for their employer for a minimum of 26 weeks to qualify, and can then apply for a more predictable work pattern.

Employers must consider the request in a ‘reasonable manner’ and give a written response within a ‘reasonable’ timescale -- one month.

How employers can turn down predictable hours applications

Interestingly, employers may only reject the application if one or more of the following applies:

The change will incur additional costs;
It will have a detrimental effect on meeting customer demand;
It will have a detrimental impact on the recruitment of staff;
There will be a detrimental impact on other aspects of the employer’s business;
There is insufficient work available during the proposed period;
The move will impact planned structural changes.

Under predictable hours legislation, workers can apply up to twice a year, and no new applications can be made while a prior application is being considered.

What’s wrong with the predictable hours legislation?

And while the framework is unquestionably a step forward, there’s no requirement for employers to offer any appeals process for unsuccessful applications. As far as I can see, this is an obvious weakness in an otherwise important and overdue new law.

The predictable hours legislation also contains a whole section specifically dedicated to recruitment agency workers. This is a positive development, given these workers are often forgotten about, in legislation and accompanying guidance, almost entirely.

Who to apply to secure a predictable work pattern?

So, once the legislation is introduced, agency workers can apply, either to their temporary work agency or to the hirer that they work for. If applying to the hirer, the agency worker will need to have worked for that hirer for at least 12 weeks during the 26-week qualifying period.

The Workers (Predictable Terms and Conditions) Bill containing the legislation is currently working its way through the parliamentary approval process. There’s no set timeline, but given the steady progress so far, the expectation is that ‘predictable hours’ will be with us in the next 12 months.

Has a corner been turned for the flexible workforce? If so, let’s keep going…

Make no mistake; this is potentially game-changing for millions of people who work atypically and have to navigate a grey area of the economy. My feeling is this -- just because someone’s a zero-hours, temporary or casual worker, even an interim or freelancer, it doesn’t mean they don’t have a right to know when they’re going to be working.

Originally recommended by Sir Matthew Taylor in his 2017 review of modern working practices, the predictable hours legislation is perhaps an indication that the government is starting to finally realise just how important the temporary workforce actually is. Long may this continue!