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Zero hours workers – Working Time Regulations and exclusivity clauses

For many businesses, the festive period is one of the busiest times of the year; Whether that be due to dealing with increased numbers of customers, or simply having fewer working days to meet targets.

While some businesses may opt to recruit seasonal workers to combat this, others may already have a number of workers employed under zero-hours contracts, who can potentially offer more flexibility in terms of their availability to pick up extra work.

What is a zero hours contract?

A zero hours contract is defined in the Employment Rights Act 1996 (‘ERA’) as a contract where work is performed for an employer, but where there is ‘no certainty that any such work or services will be made available to the worker’.

Although these working relationships are defined as zero hours contracts, they are often advertised as ‘casual’, ‘flexible’, or ‘as required’ work. Despite there being an absence of certainty in terms of when work might be made available, there are some important protections available to zero hours workers.

How often can I be expected to work? Working Time Regulations 1998 (‘WTR’)

Although employment status has a bearing on the specific employment rights enjoyed by zero-hours workers who are not classified as ‘employees’; the WTR apply universally to all workers, with the aim of preventing exploitative working practices. Although this article is not intended to be an exhaustive list of the WTR provisions, both employers and workers should be aware of the following key points, especially during busy festive periods;

  1. Unless a worker expressly opts out in writing, they should not work more than 48 hours each week.
  2. Workers are entitled to daily rest periods between shifts. This is 11 hours rest within any 24-hour period.
  3. Workers are entitled to a 20-minute rest break for every 6 hours of work. During this time, they are also entitled to leave their workstation is they wish.

It is also worth noting that zero hours contract workers will also be entitled to;

  1. National Minimum Wage; And
  2. Statutory annual leave of at least 5.6 weeks (pro-rata) during each leave year.

But what if I’m not getting enough work? Exclusivity terms

Not all businesses will experience the same demand for additional workers or face an increased workload. Consequently, some zero hours workers may find that there isn’t enough work made available to them; in those instances, they may wish to consider other temporary roles to supplement their income.

Section 27A ERA, states the following;

(3)  Any provision of a zero hours contract which –

(a)  prohibits the worker from doing work or performing services under another contract or under any other arrangement, or

(b) prohibits the worker from doing so without the employer’s consent,

is unenforceable against the worker.

Therefore, zero-hours contracts must not contain exclusivity clauses that attempt to restrict the ability of workers to take on additional work with another employer, should they wish to do so. Equally, zero hours workers are also protected from being subjected to a detriment or dismissed as a result of breaching any exclusivity clause contained within the contract. This would give rise to a right of action against the Employer of either automatic unfair dismissal or detriment as set out in Regulation 2 of the Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015.