In May 2015 the Employment Rights Act was amended to include at Section 27A a provision which made unenforceable any requirement in a zero hours (ZH) contract that the worker could not work elsewhere or could do so only with the employer’s consent. But so what, really? Since many ZH staff are not employees, and even fewer have the service necessary to claim unfair dismissal, the provision was broadly toothless as a protection.
That has now changed. The not very slickly-titled Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015 came into force on 11 January and changed the ZH game very significantly in favour of the employee – potentially more than the Government intended.
The new law
Where a worker (because this is not limited to “employees” in the strict sense) is dismissed for breaching a Section 27A prohibition on working elsewhere or doing so without the employer’s consent, that dismissal will now be unfair. No minimum two years’ service requirement applies and even non-employee workers can claim the same compensation as “proper” employees. Where the worker is not dismissed but is subject to a detriment, that is now actionable in the same way as the other detriment provisions of the Employment Rights Act.
Codifying the basis on which sensible employers have been working for some time, the new Regulations shift the burden of proof squarely to the employer from the outset – under Regulation 3(6) it is for the employer to establish that the dismissal or detriment was for something other than that breach, and if it cannot do so, it will lose.
The superficially obvious solution for employers is simply to remove any exclusivity wording from your ZH contracts, either new or existing (the Regulations do not apply only to ZH contracts entered into after 11 January). Then there is no provision, so then the worker cannot be in breach of it and then you can dismiss him again without fear of these regulations, hooray. Certainly you should amend your ZH contracts old and new, but that is not the end of the matter.
The new problem
Consider this possibility – I have a reasonably regular need for the services of one or more ZH workers. I ring the ones I know and have happily used in the past, but increasingly I find that they are not available for me when I want them because they are working for somebody else at the vital moment. Ultimately I am inevitably going to stop ringing them and instead reach for someone more accessible to me. If I stop using you as a ZH worker because you are repeatedly away working elsewhere when I ring, is it not effectively a condition of your working for me (or at least of being offered work by me) that you don’t do that? How hard would it be to imply into their ZH contract a Section 27A requirement to be available when I ring them? There is nothing in Section 27A to say that the offending provision has to be in writing. And since my ceasing to offer you work is perhaps a dismissal and certainly a detriment, am I not then in a lot of trouble under these new Regulations? Particularly where the employer’s reasons for using one ZH worker rather than another may be thin in the extreme, quite a burden could arise to formalise and justify the selection process.
And it does, though not as great as first appears. The key for employers to side-step this issue is to rely on the unavailability itself, not the reason for it – whether it is caused by alternative work elsewhere, holidays, sickness, travel disruption or simply can’t-be-bothered should be irrelevant for the employer’s purposes. Therefore, the onus on it will be to show that it wound down or ceased its usage of a ZH worker who was unavailable for alternative employment reasons no sooner than one who was unavailable for any other reason. Rather than collect the reason for the unavailability as you go along (thereby equipping yourself with the knowledge necessary to get this wrong), just count the occasions of unavailability and go from there. It may well be appropriate to develop some form of formula based on a percentage of unavailability as against availabilities over a given period, and then apply it rigidly. That way it will be much harder for the worker to show that his dismissal or detriment was due to the breach of any express or implied confidentiality clause.