Following a recent governmental review, the spotlight has fallen on zero-hours contracts. The term “zero-hours contracts” is not a legal term. The term describes a casual working arrangement under which there is no obligation to provide minimum (or any) work and where the worker is not obliged to accept the offer of work. The crux of such an arrangement is that there is no mutuality of obligations and there is flexibility.
Written Contract
The Review recommended that those working under zero-hours contracts for 12 months or more, should have the right to request a written contract to reflect the actual working pattern. There was also a suggestion that companies of a certain size should report on many requests they had received from such workers for fixed hours.
Since the review over a year ago, there has been an increased awareness and requests for zero-hours contracts. It is estimated that 3% of people in employment operate under this arrangement. With this in mind, it was important to bear in mind certain factors.
Flexible Working
Zero-hours contract indicate a casual and flexible work arrangement under which the employer is not obliged to provide any or minimum amount of work to the worker, and the worker is not obliged to accept the offer of work. There is no mutuality of obligations, there are no commitments, and there is genuine flexibility. When things go wrong, the Tribunal will investigate the actual working arrangement and working pattern, not just the written contract in place.
Recruitment Process
During the recruitment process, businesses should be clear about the types of roles they require. The job description should be clear and make a clear distinction between permanent and temporary work. Zero-hours contracts permit employers to put workers on call permanently – thereby ensuring workers are always available for work whenever they are required, but without the obligation to offer work.
When drafting, be careful of the terminology used or when referring to them. Avoid the use of the word’s “employee” or “employment” – these are associated with genuine employees, not workers.
Where there is a clear and established pattern of working arrangement, a contract can be implied by conduct. An umbrella contract can arise where there is mutuality of obligations, or where there is a clear pattern where work has been provided on a regular and/or set basis. Where such a pattern arises, it may well override the zero-hours arrangement that was intended.
Exclusivity and restrictive covenants clauses should not be incorporated into zero-hours contracts. To impose restrictions after the temporary assignment has ended, suggests control being exercised. The employer cannot stop a worker from working for another employer – even if that other employer is a competitor. Introducing any form of post termination restrictions would create doubts on whether it can genuinely be said that there is no mutuality of obligations. If an employer dismissed a worker for accepting work from another employer, this will be automatically unfair regardless of length of service.
When taking on an individual, consider the nature of the relationship required with a worker, then ensure that the written document accurately reflects that aim. Seeking advice and careful drafting are therefore essential.
