Zero hours contract workers 





There is a widespread misconception that zero hours contract (ZHC) workers have no employment rights. Instead, their employment rights depend, as always, on whether they are an employee, a worker or genuinely self-employed, applying the principles described earlier in this Chapter. The problem for these workers is often less the availability of the rights themselves than the chronic imbalance of power which undermines the value of those rights, at least for unorganised workers.
Among the many practical barriers to enforcement is the risk of employer retaliation through the simple expedient of hours being “zeroed-down” or future assignments being withheld.



In a typical ZHC arrangement, the written contract terms will state that the employer is not obliged to offer any work and the worker is not obliged to accept it. Hours are often explicitly described as “zero”, or “hours to be agreed”. The employer only agrees to pay for hours worked. Sometimes instead of no hours at all, the contract will offer, say, three hours a week. These are so called “short hours” contracts.





During each shift or assignment, most people with a ZHC are likely to qualify for at least the basic statutory “worker” rights listed on pages 31-32. Even if an employer genuinely has no obligation to provide work and the individual has no obligation to accept it, once a shift or assignment is accepted there will be a legal contract to provide personal service for the duration of that shift or assignment (James v Redcats [2007] ICR 1006). 




Some rights such as the right to statutory sick pay depend on an individual earning above the Lower Earnings Limit (£118 per week for 2019-20) from a single employer. Some ZHC workers will not meet this threshold, especially if they have more than one job, as wages for multiple jobs are not aggregated together. For similar reasons, many ZHC workers will fail to qualify automatically for pension auto-enrolment, although they may be able to ask to participate (see Chapter 4). 





Most cases involving zero hour contracts concern “worker” rights such as the National Minimum Wage and holiday pay. However, occasionally tribunals go further and rule that the relationship is really one of employment, bringing employee rights such as TUPE protection, or protection from unfair dismissal. For example, in Pulse Healthcare Ltd v Carewatch Care Services Ltd [2012] EAT 0123/12, five careworkers on zero hours contracts were found to be employees entitled to TUPE protection when the service provider changed. In this case, the EAT concluded that despite being labelled zero hours contracts, they were really contracts of employment. Looking at the reality of the situation, there was a clear mutuality of obligation between the parties, since the employer was clearly obliged to provide work and the careworkers were obliged to accept it . 


In another example, the case of Rice Shack Limited v Obi [2018] UKEAT/0240/17/DM, Ms Obi was an employee with a ZHC. Her written contract stated that there was no obligation on her employer to offer work and no obligation on her to accept it, but the evidence showed that she normally worked for 15.5 hours a week. When her employer suspended her without pay for 40 weeks in breach of her employment contract after an alleged altercation at work, a tribunal awarded 40 weeks of back pay, based on her normal working hours. 


Many employee rights require continuous service, but some important rights require no service, including most claims for automatically unfair dismissal, trade union-related rights and some significant parental rights (see Chapter 9). 
 




Sometimes the statutory rules on continuity of employment can help to bridge gaps in service for ZHC employees and others on short-term contracts. These rules, found in sections 210 to 219, ERA 96, are summarised on pages 367-369, Chapter 10. The government has promised to modify these rules slightly to improve the position of employees with irregular working patterns (see box on page 367). 


One possible source of rights for some ZHC workers is the Part-time Workers Regulations 2000 (PTWR), summarised on pages 43-46. A part-time worker is defined by the PTWRs as “any worker whose hours are less than those of a full-time worker”. This definition is wide enough to include ZHC workers and “short-hours contract” workers. To succeed, a ZHC claimant must be able to identify a real full-time comparator, not a hypothetical one (Carl v University of Sheffield [2009] UKEAT/0261/08/CEA). The chosen comparator can be any permanent employee who does the same or broadly similar work and is based at the same establishment (Roddis v Sheffield Hallam University [2018] UKEAT 0299/17/DM).


An agency worker with a ZHC is protected by the Agency Worker Regulations 2010 (Brooknight Guarding Limited v Matei [2018] UKEAT/0309/17/LA). For more information, see page 57: Agency workers. 



It is unlawful to ban a ZHC worker from working elsewhere without the employer’s consent (Zero Hours Contracts (Redress) Regulations 2015). 


There is non-statutory Business, Energy and Industrial Strategy (BEIS) guidance for employers on ZHCs, containing examples of “inappropriate use” and “best practice”. It suggests that ZHCs “should not be used as a permanent arrangement if it is not justifiable”. As the guidance is non-statutory, employers are not legally obliged to follow it and tribunals need not take it into account.