Our last newsletter included an article covering government guidance on zero hours contracts. We drew attention to the ‘exclusivity ban’ in the Small Business, Enterprise and Employment Act 2015 which confirms that clauses preventing a zero hours worker working for another business are unenforceable.
The snappily entitled Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015 came swiftly into force and took effect from 11 January 2016. This adds teeth to the previous ban and gives zero hours workers a right of redress against businesses.
The key points are that now:
• Any dismissal of a zero hour contract employee will be automatically unfair if the reason, or principal reason, for their dismissal is that they have failed to comply with an exclusivity clause prohibiting them from working for another employer. This is a ‘day one’ right – there is no qualifying period of employment required.
• Zero hours workers have the right not to be subjected to any detriment because they have failed to comply with an exclusivity clause, i.e. if they have worked for another employer in breach of a clause which attempts to prohibit them from doing so. You need to be careful not to speak adversely to them or pass them over for opportunities or extra hours, for example. This is a similar protection to that given to part time or fixed term workers.
• Any claims would be pursued in the Employment Tribunal.
• Where a tribunal finds a claim well founded, it may make a declaration as to the rights of the complainant, and an award of compensation linked to any loss suffered. You would be likely to face adverse publicity!
There is still nothing to stop you using zero hour contracts and they add useful flexibility – you just need to ensure you don’t fall foul of this legislation and don’t treat those workers adversely.
Verity Slater is an experienced partner in the employment team in Truro. If you would like to contact Verity then please call 01872 265100 or email employment@stephens-scown.co.uk.