{"id":705,"date":"2015-05-30T15:43:36","date_gmt":"2015-05-30T15:43:36","guid":{"rendered":"http:\/\/hr-management-dimensions.co.uk\/HRMDmn\/?p=705"},"modified":"2019-10-02T16:54:46","modified_gmt":"2019-10-02T15:54:46","slug":"casual-and-zero-hours-staff-a-balanced-approach","status":"publish","type":"post","link":"https:\/\/hr-management-dimensions.co.uk\/HRMDmn\/casual-and-zero-hours-staff-a-balanced-approach\/","title":{"rendered":"Casual and Zero Hours Staff \u2013 A Balanced Approach"},"content":{"rendered":"<header class=\"entry-header\">\n<div class=\"entry-meta\"><span class=\"sep\">Posted on <\/span><time class=\"entry-date\" datetime=\"2015-05-30T20:36:43+00:00\">30\/05\/2015<\/time><span class=\"by-author\"> <span class=\"sep\"> by <\/span> <span class=\"author vcard\">HR Professional<\/span><\/span><\/div>\n<\/header>\n<div class=\"entry-meta\"><\/div>\n<div class=\"entry-meta\">[Editor&#8217;s note &#8211; this is an updated version of\u00a0 \u2018Zero Hours \u2013 A Casual Discussion\u2019 p<span class=\"sep\">ublished originally on <\/span><span style=\"color: #000000;\"><time class=\"entry-date\" datetime=\"2013-11-30T22:46:58+00:00\">30\/11\/2013.]<\/time><\/span><\/div>\n<p><!-- .entry-header --><\/p>\n<div class=\"entry-content\">\n<p><strong><span style=\"color: #9b0505;\">Zero Hours Contracts are Still Legal<\/span> <\/strong><\/p>\n<p>How will you make effective use of such staff to meet your service needs and balance your needs as an employer as well as the needs of individuals on such contracts?\u00a0 \u00a0\u00a0 Changes have been introduced from 26th May 2015 and further changes are proposed to halt abuse by the minority of employers.\u00a0 Many employees will be affected by these changes.<\/p>\n<p>For some organisations, zero hours contracts are an appropriate.way of providing a flexible workforce.\u00a0 Unfortunately, some managers abuse the use of such contracts by banning employees from making up their earnings by working for other employers or \u2018punish\u2019 them by not providing much or any work if an individual chooses to work for other employers..\u00a0 Rogue managers will now find that more difficult but all managers need to revisit their contracts and aims as explained below.<\/p>\n<p>In theory, zero hours contracts are like a tap of resources that can be turned on and off at very short notice and so supplement the regular workforce.\u00a0 However, the wording of the arrangements and failure to understand how legal principles affect such contracts often leads to surprises for managers<\/p>\n<p>The leisure industry, as an example, has used zero hours for many years to cope with seasonal busy periods across the year and also unplanned absences.\u00a0\u00a0 Estimates of the extent to which zero hours contracts are used across all sectors vary from\u00a03% to 11% of employers or the workforce [1].<\/p>\n<p>There are pitfalls to avoid in such contracts as well as understanding the impact of the recent changes .<\/p>\n<p><span style=\"color: #9b0505;\"><strong>Changes from May 2015<\/strong><\/span><\/p>\n<p>From 26th May, zero hours contracts may no longer prohibit a worker from taking on other work to increase his\/her earnings.\u00a0 Hence, clauses requiring exclusive availability of an employee or worker are not enforceable against the employee\/worker in a zero hours arrangement.\u00a0 The regulations are vague and more regulations are due on anti avoidance measures of the ban on exclusivity clauses.\u00a0 Managers should review their contracts and employment practices to identify any breaches of the legislation and take action to brief their managers and affected employees on the new approach \u2013 this is explored later.<\/p>\n<p><strong><span style=\"color: #9b0505;\">Further Changes Proposed to Deter Circumventing the Ban<br \/>\n<\/span><\/strong><\/p>\n<p>The previous Government consulted on proposals to stop managers seeking to side step the ban on exclusivity clauses.\u00a0 The responses to the Government\u2019s consultation [2] indicate that the majority believe that exclusivity clauses should be banned and other measures taken to deter employers from circumventing the ban.\u00a0 Further legislation has been drafted [3] which is likely to introduce the principles below:<\/p>\n<ul>\n<li>The prohibition of exclusivity clauses in zero hours types of contracts i.e. where an individual is not guaranteed a certain level of weekly income and\/or hours.\u00a0 That ban would not apply to\u00a0zero hours contracts that:\n<ul>\n<li>pay at least \u00a320 per hour for each hour worked or<\/li>\n<li>if the weekly income is above a certain level \u2013 which will be determined by a set number of hours (to be announced) and multiplied by the adult rate of the national minimum wage, at the prevailing time;<\/li>\n<\/ul>\n<\/li>\n<li>The right of a zero hours arrangement employee\/worker (earning below \u00a320 per hour)\u00a0 to complain to an Employment Tribunal if he is subjected to any detriment for working for another employer or other working arrangement. (It is not clear whether this would require payment of a fee to make such a claim but one hopes that would not be so or only a minor sum);<\/li>\n<li>The Tribunal may award compensation to the employee for the breach;<\/li>\n<li>To deter rogue employers, Tribunals may be given powers to impose a financial penalty on an employer who breaches the legislation in a way that is considered to have aggravating features.<\/li>\n<\/ul>\n<p><strong><span style=\"color: #9b0505;\">Why Do You Need to Review Your Aims and Contractual Clauses?<\/span> <\/strong><\/p>\n<p>Zero hours contracts lull managers into a false sense of security that a zero hours employee does not gain continuous service etc.\u00a0 Any arrangement or custom that exists between an employer and employee will lead to continuous service even if the employee does not work during a \u2018fallow\u2019 period if the understanding was that the employee would return to work after that period. \u00a0 Furthermore, any week in which an employee works an hour or part of an hour will be counted towards continuous service provided there is not a break of one week or more which is not treated as continuous service.\u00a0 Certain breaks are still treated as continuous service e.g. maternity leave.<\/p>\n<p>Unwittingly, managers often create contractual conditions in which continous service accrues, for example \u2013<\/p>\n<ul>\n<li>A term time worker who is engaged on a zero hours contract and works varlable hours in term time and does not work during holiday periods but returns to work after the holiday periods.\u00a0 That arrangement will be categorised as a part time or term time contract irrespective of a label of zero hours.<\/li>\n<\/ul>\n<ul>\n<li>Some managers try to reduce the paper work involved by leaving zero hours employees on the lowest possibile fraction of an hour that their payroll\/personnel system will permit and thus avoid having to set up an employee afresh each time the individual worked.\u00a0 That administrative practice requires close monitoring of what is happening in practice to ensure that the arrangement has not turned from zero hours into a part time contract.<\/li>\n<\/ul>\n<p>Zero hours arrangements take many shapes but the real risk is that where there is an understanding or custom or arrangement that the individual will carry on working after a certain period, then the law is likely to consider that the individual has acquired continuous service and consequently various employment rights.<\/p>\n<p>The key is not the label that an employer gives to a contract but its essence and the legal principles that will determine the true rights of the individual.\u00a0 The lesson for managers is to be clear about when a truly flexible, casual work arrangement is appropriate and then ensure that both the express terms of the agreement and the practices adopted are consistent with a zero hours relationship.\u00a0 The importance of monitoring how frequently individuals on zero hours are working and for how long is stressed.<\/p>\n<p><strong><span style=\"color: #9b0505;\">Questions to Ask Your Managers<\/span><\/strong><\/p>\n<p>a)\u00a0 Will you pay expenses and\/or a minimum flat payment to an individual who is asked to report to work but then cancelled at short notice i.e. upon arrival or shortly after starting?<\/p>\n<p>b)\u00a0 How do you monitor whether employees are working every week in practice even if their hours vary each week?\u00a0 Some zero hours employees are keen to work regularly but want the freedom to say \u2018no\u2019 to having to work \u2013 even if in practice that never seems to occur.<\/p>\n<p>c)\u00a0 Are there some zero hours roles in which the individual will have access to confidential information that you do not want passed on to a competitor etc?\u00a0 If so, consider whether clauses should be inserted that make it clear that such information is confidential and not for placing in the public domain.\u00a0 Enforcement of such a clause is possibile but usually the damage is done already.\u00a0 A preferable solution may be to restrict such information to \u2018higher\u2019 paid employees who can then be made subject to an exclusivity clause as well as confidentiality clauses.<\/p>\n<p><em><strong>Sources<\/strong><\/em><\/p>\n<p>[1]\u00a0 Zero-hours contracts: myth and reality, CIPD, 2013 plus the Workplace Employment Relations Survey, the latter estimated that the proportion of workplaces with some employees on zero-hours contracts increased from 4% in 2004 to 8% in 2011.<\/p>\n<p>[2]\u00a0 Zero Hours Employment Contract\u00a0 \u2019Government Response to the Banning Exclusivity Clauses: Tackling Avoidance\u00a0\u00a0 March 2015\u00a0\u00a0 Department for Business, Innovation and Skill<\/p>\n<p>[3]\u00a0 The Draft Zero Hours Workers (Exclusivity Terms) Regulations 2015<\/p>\n<p>See a range of articles on how to develop a commercial focus in your HR team and effective\u00a0 focused solutions to people and organisational issues\u00a0 at <a href=\"https:\/\/hr-management-dimensions.co.uk\/HRMDmn\/blog\" target=\"_blank\" rel=\"noopener noreferrer\">our HR Management Dimensions blog.<\/a><\/p>\n<p><strong><span style=\"color: #800000;\">\u00a9 2015 HR Management Dimensions Ltd.<\/span><\/strong><\/p>\n<p>Articles are produced for information purposes only. They are not published as legal advice and must not be relied upon or construed as such as neither the author(s) nor the Company are aware of the use to which the content will be put.<\/p>\n<p class=\"no-break\"><span class=\"st_plusone_buttons\">\u00a0<\/span><\/p>\n<div style=\"display: inline-block; overflow: hidden; line-height: 0px; position: relative; vertical-align: middle; bottom: 0px; width: 36px; height: 21px;\"><\/div>\n<\/div>\n<p><!-- .entry-content --><\/p>\n<footer class=\"entry-meta\">This entry was posted in <a href=\"https:\/\/hr-management-dimensions.co.uk\/HRMDmn\" rel=\"category tag\">Employee relations and engagement<\/a>, Employment law, Employment Law Rights, Recruitment and tagged <a href=\"https:\/\/hr-management-dimensions.co.uk\/HRMDmn\/blog\/casual-and-zero-hours-staff-a-balanced-approach\/\" rel=\"tag\">casual employees<\/a>, <a href=\"https:\/\/hr-management-dimensions.co.uk\/HRMDmn\/blog\/casual-and-zero-hours-staff-a-balanced-approach\/\" rel=\"tag\">restriction on the earnings of zero hours staff<\/a>, <a href=\"https:\/\/hr-management-dimensions.co.uk\/HRMDmn\/blog\/casual-and-zero-hours-staff-a-balanced-approach\/\" rel=\"tag\">zero hours contracts<\/a> by HR Professional. Bookmark the permalink.<\/footer>\n<p><!-- .entry-meta --><\/p>\n","protected":false},"excerpt":{"rendered":"<p>Posted on 30\/05\/2015 by HR Professional [Editor&#8217;s note &#8211; this is an updated version of\u00a0 \u2018Zero Hours \u2013 A Casual Discussion\u2019 published originally on 30\/11\/2013.] Zero Hours Contracts are Still Legal How will you make effective use of such staff to meet your service needs and balance your needs as an employer as well as [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"wds_primary_category":0,"footnotes":""},"categories":[36,66,38],"tags":[208,37],"class_list":["post-705","post","type-post","status-publish","format-standard","hentry","category-contracts-of-employment","category-recruitment-selection","category-terms-of-employment","tag-casual-hours-contracts","tag-zero-hours-contracts"],"jetpack_featured_media_url":"","post_mailing_queue_ids":[],"_links":{"self":[{"href":"https:\/\/hr-management-dimensions.co.uk\/HRMDmn\/wp-json\/wp\/v2\/posts\/705","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/hr-management-dimensions.co.uk\/HRMDmn\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/hr-management-dimensions.co.uk\/HRMDmn\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/hr-management-dimensions.co.uk\/HRMDmn\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/hr-management-dimensions.co.uk\/HRMDmn\/wp-json\/wp\/v2\/comments?post=705"}],"version-history":[{"count":0,"href":"https:\/\/hr-management-dimensions.co.uk\/HRMDmn\/wp-json\/wp\/v2\/posts\/705\/revisions"}],"wp:attachment":[{"href":"https:\/\/hr-management-dimensions.co.uk\/HRMDmn\/wp-json\/wp\/v2\/media?parent=705"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hr-management-dimensions.co.uk\/HRMDmn\/wp-json\/wp\/v2\/categories?post=705"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hr-management-dimensions.co.uk\/HRMDmn\/wp-json\/wp\/v2\/tags?post=705"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}