One of the proposals in the new Small Business, Enterprise and Employment Bill (Bill) which was announced by the Government earlier this year and discussed in July's Law at Work was the ban on exclusivity clauses in zero-hours contracts.
Zero-hours contracts are controversial arrangements under which an employer makes no promise of work (or payment) to a worker, but usually expects the worker to be available to work if called upon to do so. The worker receives pay only for time actually worked. Some such contracts prevent the worker from accepting any other job. In the light of suggestions made to the Government that it would be relatively simple for an employer to avoid an exclusivity ban e.g. by offering contracts that guarantee just one hour of work, or that employers will simply offer no work or fewer opportunities to individuals who choose to work for another employer the government has recently launched a consultation seeking views on the best mechanism for tackling avoidance of the exclusivity ban, as well as possible routes of redress. Responses to the consultation are expected to help with the implementation of the Bill and must be made by 3 November 2014.
Specifically the Government are seeking views on
- What the likelihood of employers avoiding a ban on exclusivity clauses might be and how that might be achieved;
- Whether the Government should do more to deal with potential avoidance and how that might be best achieved. This could be through non-statutory guidance or legislation and whether to do this alongside the ban or wait for evidence of whether such avoidance is taking place;
- How potential avoidance could be dealt with. This could include criminal or civil penalties or redress in the tribunals for an individual on a zero hours contract treated detrimentally by their employer as a result of taking another job against the wishes of their employer;
- Whether there are any potentially negative or unintended consequences as a result of the wording in the legislation.
The consultation also suggests that business representatives and unions should consider working together, with the support of the Government, to develop industry led, industry owned, sector specific codes of practice on the fair use of zero hours contracts although no mechanism or timescale for implantation is mentioned. The Government will also review existing guidance with a view to improving the information available to individuals and employers on using these contracts. The result of this consultation will then have implications for the final wording and timing of the introduction of the Bill which is set for either late 2014, or more likely early 2015.