Most zero hours contracts will give staff ‘worker’ employment status. This means they have the same workplace rights as regular employees although any break in continuous employment may affect these. Zero Hours Workers (‘ZHWs’) are usually entitled to be paid the National Minimum Wage, holiday pay, and reimbursement for e.g. work related travel in the same way that regular employees would be.
The zero hours contract itself
For a zero hours contract to be genuine, it must stand up on paper as well as in practice. In other words, the exact status of both parties must be reflected in the contract as well as in day to day business practice. In any dispute, a Tribunal may decide for themselves what the real contractual relationship between the parties was and they would look to the terms of contract for evidence. As such, the importance of a properly drafted contract clearly setting out terms and conditions cannot be overstated.
A zero hours contract doesn’t always mean that the contract exists only when the work is provided. Normally, a full calendar week without work from Sunday to Saturday is required to evidence a break in employment. Where the employment has been continuous – i.e. there has not been a full week’s break – then certain employment rights may have accumulated over time, for example, the right to be paid for untaken holidays.
Change in the law for zero hours contracts
Since May 2015, the law has prevented employers from enforcing an ‘exclusivity clause’ in a zero hours contract. This means that an employer may not restrict a ZHW from working for other employers or businesses. If an employer tries to enforce exclusivity and sacks a ZHW for not complying, they may be sued for Unfair Dismissal. There is no qualifying period or time limit for this right to accrue.
ZHWs are not obliged to accept work if they do not want to. A zero hours contract is a purposely casual arrangement and the worker is not required to accept any or all of the hours offered. It is never a good idea for an employer to try and persuade or force the ZHW into accepting the hours offered as this may call into question the terms of the contract and whether it is in fact a genuine zero hours contract. There is, of course, a risk to the ZHW that if they continually refuse work then the employer may terminate the arrangement.
Redundancy under zero hours contracts
ZHWs do not automatically qualify for redundancy pay as they are not employees BUT it is very important for an employer to assess the nature of a staff member’s contract before trying to dismiss, lay-off, or enforce redundancy. Particularly, as in a redundancy situation, those most likely to be affected are often those indirectly affected on e.g. gender grounds, for example, women are more likely to be working under flexible contracts than men. Any misuse, whether intentional on not, may give rise to a claim under the Equality Act 2010. In this situation, it is always worth taking professional advice.
Paternity leave under zero hours contracts
Fathers and partners, including same sex partners, who work under zero hours contracts are not usually entitled to leave or pay, but if they meet the qualifying conditions, and have tax and NI deducted from their wages, they would usually be entitled to Statutory Paternity pay (“SPP”).