Employment Status

Employment status is very much in the news particularly, given the publicity which surrounds zero hours contracts and the implications for employers and employees alike.  An A typical worker is: 

  • Where the pattern of work does not fit in with the classic or traditional concept of an employee working full or part-time for a single employer under a contract of service of indefinite length.

The clarification of an individual as either an employee working under a contract of service, a worker or a self-employed consultant working under a contract for services is of some significance as the status of the individual will determine what rights and protections the individual will have. 

Employees have the greatest level of protection, as working patterns however, become more flexible the label attached to the individual by the employer may not be conclusive. 

There is no prescriptive approach for determining the status of an individual.  Each individual arrangement can be scrutinised either by an Employment Tribunal or indeed by the Inland Revenue both of whom may look at a set of circumstances and reach a different conclusion.

At the outset of the relationship it is worth while for an employer to decide what type of working arrangement it wishes to enter into in relation to the individual worker. 

The popularity of zero hours workers has given a large degree of flexibility to both employers and employees.  What is now termed as a zero hours worker would historically have been called a casual worker.  Such workers are often used in industries which are seasonal such as agriculture and tourism, to meet fluctuating demands and in the public sector for example, in the care industry.

A zero hours contracts is typically one under which the employer does not guarantee to provide work and pays only for the work actually done.  Even then there can be a risk to the employer that a pattern of work develops and a worker may then be able to point towards a contract of employment.  The test are again non-prescriptive and vary however, the important ingredient in an employer/employee context is to establish sufficient mutuality of obligation.  This means that the employer is obliged to provide work and the individual is required to accept it.

Zero hours contract have become a political hot potato with each political party expressing its own views.  Further to the election on 7 May 2015 we will have some sense as to what to expect in terms of legislation and zero hours contracts.

In response to a review of zero hours working, the Government had produced the Small Business, Enterprise and Employment Act 2015 which in the context of seeking to ban exclusivity had defined a zero hours contract.  The definition "a contract of employment or other workers contract under which a worker undertakes to perform work conditionally on the employer making such work available, but there is no certainty of such work being available". 

The Conservative Government in addition to placing a ban on exclusivity clauses in zero hours contract was also committed to improving the guidance in relation to such contracts.  The bill was not however enacted before the dissolution of the Government at the end of March 2015.  The ban on exclusivity is however, very much still on the political agenda if the Conservative Party return to power. 

In the meantime, in the case of Southern v Britannia Hotels Limited a zero hours worker was awarded £19,500 for injury to feelings for harassment.  In reaching its decision the Employment Tribunal noted that not only the Claimants youth and mental health but also the fact that part of her vulnerability arose from her status as a zero hours worker.  The Claimant Miss Southern felt trapped and fearful that shifts may be reduced if she complained about the conduct of her manager. 

Posted on: 22/05/2015

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.

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