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“Zero hours” contract workers
Another unwelcome variation of “casual” or “relief” work is the “zero hours” contract. Under a zero hours contract, the employer does not guarantee to provide any hours of work at all.
The employment status of a zero hours contract worker will be worked out by applying the usual tests of mutuality, personal service and control.
In a significant ruling which follows the direction established by Autoclenz v Belcher [2011] UKSC 41, the EAT decided that regardless of whether written contract hours are described as “zero”, a tribunal must examine the factual context to see whether employees are in fact obliged to work regular hours:
Five careworkers were engaged by Carewatch to provide a 24-hour critical care package for VF, a severely disabled lady. Carewatch lost the contract when the PCT awarded it to new providers, Pulse, who argued that the careworkers were not employees, or alternatively that they lacked enough continuous service to bring unfair dismissal claims, because they were on zero hours contracts.
In reality, the five claimants had worked an agreed number of hours on a regular basis over a number of years caring for VF. The EAT agreed with the employment judge that the contract documentation did not reflect reality. Instead, they decided that the claimants were all employees with global contracts of employment to provide a fixed number of hours each week, and with enough service to bring their claims. “Any other conclusion, given the circumstances of this case, would have been unrealistic.”
Pulse Healthcare Limited v Carewatch Care Services Limited & Others [2012] UKEAT 0123/12/2007
The Pulse case demonstrates the importance of preserving evidence of hours worked (for example pay slips) to be able to prove the true nature of the employment contract.