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
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
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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