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 not the presence or otherwise of statutory employment rights but rather the chronic imbalance of power which wholly undermines the value of any formal 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.




Most people with a ZHC are entitled to at least basic statutory “worker” rights listed on page 31. 




Even if the employer genuinely has no obligation to provide work and the individual has no obligation to accept it, once a shift or assignment is accepted a legal contract will be created for the duration of that shift or assignment (Drake v IPSOS Mori UK Limited [2012] UKEAT/0604/11/ZT). As long as work must be performed personally (rather than through a substitute or a limited company), the individual will be a “worker”, with basic worker rights (and may even be an employee). Only the genuinely self-employed do not qualify for worker rights (see page 33). 




Some rights such as the right to statutory sick pay depend on an individual earning above the Lower Earnings Limit (£116 per week for 2018-19) 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 for pension auto-enrolment (see Chapter 4). 




Some ZHC workers may have the status of employees, entitling them to better rights (see page 32). Some employee rights require continuous service, but many important rights require no service, including most claims for automatically unfair dismissal, trade union-related rights and some significant parental rights (see Chapter 9). 




Where rights depend on continuous service, many ZHC employees are likely to struggle. However, as explained on pages 37 to 39, tribunals must look at the whole context, including the parties’ unequal bargaining relationship, to decide questions of employment status (Autoclenz v Belcher [2011] UKSC 41). Even if a written contract describes the hours to be worked as “zero” or “casual as required”, if the worker can show a working pattern of regular hours over a long period, an employment tribunal may decide that their service has in reality been continuous. In practice, this kind of claim is difficult to prove. For an example of a successful claim, see the case of Pulse Healthcare Limited v Carewatch Care Services Limited & Others [2012] UKEAT 0123/12/2007, summarised on page 351.



Sometimes the statutory rules on continuity of employment can help to bridge gaps in service for ZHC workers. These rules, found in sections 210 to 219, ERA 96, are summarised on pages 351-354, Chapter 10. 




Another possible source of rights for some ZHC workers is the Part-time Workers Regulations 2000 (PTWR), summarised on pages 45-47. The definition of a part-time worker under the PTWRs, “any worker whose hours are less than those of a full-time worker”, is wide enough to include ZHC workers and “short hours contract” workers. However, to succeed, claimants must be able to identify a real full-time comparator, not a hypothetical one (Carl v University of Sheffield [2009] UKEAT/0261/08/CEA).



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 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 do not have to take it into account. 



The TUC continues to call for much stronger legal protection of ZHC workers, including compensation where shifts are cancelled at short notice, written contracts with guaranteed hours, regular shifts and simplification of employment law (especially complicated rules on service continuity and employment status), so that all workers get the same basic employment rights. However, as shown, for example, by the successful McDonalds strike of 2018 supported by the Bakers and Allied Workers Union (which led to the largest pay rise in 10 years), while legal rights are undoubtedly important, solidarity and effective organisation is likely to be the best way to achieve gains for ZHC workers.