The new government has implemented the long-heralded legislation prohibiting the use of exclusivity clauses in zero hours contracts. Banning clauses requiring exclusivity from the worker was a coalition government promise that continued to be a Conservative party manifesto commitment.
Section 153 of the Small Business, Enterprise and Employment Act 2015 (inserted into the Employment Rights Act 1996) came into force on 26th May 2015. This makes any provision in a zero hours contract that prohibits a worker from performing work or services for another employer, or that requires the worker to get an employer’s consent first, unenforceable. This applies to all contracts where there is no guarantee that the employer will offer work, but the worker is expected to accept any work offered.
Concerns have however been raised over the extent to which the new legislative provisions tackle the perceived abuse of zero hours contracts by employers. For example there is concern that employers may be able to avoid the ban by instead putting workers on a one-hour contract rather than a zero hours one in order to retain exclusivity.
In March the coalition government carried out an anti-avoidance consultation exercise in advance of any ban being implemented. Draft anti-avoidance regulations were published covering, amongst other things, the ability for workers to bring a claim in the employment tribunal when they had suffered a detriment as a result of carrying out work under another contract. However, these draft regulations were not brought into force at the same time as the ban on the use of exclusivity clauses. This means that, at present, workers have no real power to enforce the ban. There is nothing to stop employers penalising workers by restricting work opportunities or indeed providing no work simply because an individual has chosen to work for someone else.
Until anti-avoidance regulations are brought into force – and the Government has given no indication as to when we should expect to see these –it appears that there is little that can be done to stop employers circumventing the ban. So although the government has nominally complied with its commitment to tackle exclusivity clauses it seems that the approach is one of best practice rather than strict legal enforcement.