Anna Bunting – partner in our Employment team – discusses Zero Hours Contracts: Where Are We Now?

A ‘Zero hours contract’ is an agreement between an employer and an individual with no guarantee of work. These agreements are used widely by employers in certain sectors, such as hospitality, where staffing needs can be unpredictable. Politicians have expressed concern over their use due to the potential for abuse by employers and this topic has consequently attracted a lot of media coverage over recent years.

Of particular focus has been the use of exclusivity clauses to prevent individuals from working elsewhere. Following consultation, the use and enforceability of these clauses was abolished in May 2015. Despite this, there has been no real recourse for an individual if their employer does try to enforce such a clause….until now:

The Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015 came into force on 11 January 2016.

The Regulations provide a remedy for zero hours workers against employers who include exclusivity clauses in their contracts of employment. Zero hours employees now have the right not to be unfairly dismissed; and zero hours employees and workers have the right to not be subjected to a detriment for failing to comply with an exclusivity clause.

The government have also published guidance on the use of zero hours contracts which covers when they should be used, promotes transparency as to the arrangement and discourages employers from cancelling shifts at short notice.

The ban on exclusivity clauses is welcomed, but do these regulations go far enough? The real issue may actually be the allocation of work. In practice, and despite these new provisions, individuals who reject work because they are working elsewhere are still less likely to be called upon in the future because they have failed to keep themselves exclusively available.

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