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The term ‘zero hour’ indicates a contract for casual work under which the employer is not obliged to provide a minimum (or any) amount of work to the worker but the worker will gradually be expected to be available for work when offered.

Although there are over 1 million people in the UK estimated to be employed under this type of contract, according to CIPD research, there is significant confusion among both employers and zero-hours contract staff over which employment rights people on zero-hours contracts are eligible for. Poor practice has been identified where some employers are not providing written terms and conditions for zero-hours contract staff or cancelling pre-arranged work with no notice.

Almost two-thirds of employers classify zero-hours staff as employees, less than a fifth describes them as workers and 3% of employers classify their zero-hours contract workers as self-employed.

It is vital that individuals on zero hour contracts are labelled correctly in a written contract in terms of employment status (employee, worker or self-employed) and the relationship in practice matches the label placed on the individual.

With recent headlines only adding to the question of employment rights in the UK and the increase of the National Living Wage showing no sign of slowing down, employers need to remember the rights that zero-hours workers have but are quite often forgotten.

Working Time

Whilst it is unlikely that zero-hours workers will be working excessive hours (in excess of the permitted average 48-hour week), they still do have the right to annual leave and pay, and rest periods and breaks, in accordance with the Working Time Regulations 1998.

Zero-hours workers have the right to receive a pro-rata equivalent of 5.6 weeks’ annual leave per annum, calculated in accordance with the number of hours actually worked. With regards to rest periods and breaks, employers need to ensure that zero-hours contract workers receive the following:

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Unlawful Deduction of Wages

Workers are protected by the right not to suffer an unlawful deduction of wages from their employer, and can complain to the Employment Tribunal about any such deductions and seek reimbursement of any sums involved.

Discrimination

The Equality Act 2010 provides protection against discrimination to all workers. Employers should therefore ensure that zero-hours workers are not treated less favourably or made to feel victimised because of any of the following characteristics:

  • Age
  • Disability
  • Gender reassignment
  • Marriage
  • Pregnancy or Maternity Leave
  • Race
  • Religion
  • Sex
  • Sexual orientation

The level of compensation that can be awarded by an employee who has faced discrimination in the work place is unlimited. Employers should therefore ensure that they adopt equal opportunities policies and practices throughout their business, train staff on the importance of equal opportunities, and take appropriate steps or action against anyone who disobeys this.

Whistleblowing

Workers are protected from suffering any detriment as a result of them disclosing something in confidence. Compensation for such claims is unlimited and can be based on loss of earnings or benefits, injury to feelings and/or personal injury.

Pension

In line with the definition of a ‘worker’ in the Pension Act 2008, zero-hours workers may be subject to the pension auto-enrolment regime. Employers have a duty to auto-enrol eligible jobholders into an automatic enrolment scheme from the date that the jobholder becomes eligible, unless they are already active members of a qualifying scheme. Zero-hour workers would be eligible jobholders if they are at least 22 years old and have not reached state pension age and they earn more than the earnings trigger (currently £10,000 per annum).

Conclusion

It is essential that zero hour contracts are recorded in writing at the start of the relationship and the contract sets out the intended status of the individual. If this is not the case, the status of the individual can be challenged and successful tribunal claims pursued.

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Employers should be aware of the legal rights of employees, workers and self-employed individuals and ensure they have the right zero hours arranged and in place for their specific needs.

If you would like advice on zero-hours workers’ legal rights, please speak to Employment Associate, Tom Evans, on 0151 230 1217 or tom.evans@dtmlegal.com.

 

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