Anne Sharp, the chief executive of ACAS, recently identified zero hours as one of three key issues for this year (the others are resolving disputes earlier and pay) and in doing so welcomed the launch of a consultation on this pattern of employment.
As I have pointed out in an earlier blog post there is currently a divergence of views about whether zero hours contracts are a good or bad thing. When initially presented by Business Secretary Vince Cable as “a bad thing”, many employees on zero hours contracts were quick to point out that they were quite happy with their arrangements.
However, two main problem areas have emerged for discussion:
- – Situations where workers on zero hours contracts are subject to an exclusivity clause – so potentially employees employed under such contracts could be offered no work at the same time as being prevented from taking on work elsewhere:
- – A lack of transparency over the terms of zero hours contracts, access to employment rights and the financial impact of an uncertain income, for example on access to personal finance or state benefits.
Broadly, whilst the consultation acknowledges the scope for abuse of exclusivity clauses, it seems unlikely that any legislation will be proposed. For example, the thinking appears to be that existing common law rules on the enforceability of exclusivity clauses could be adequate protection against the abuse of such terms, possibly bolstered by guidance, while preserving the option in cases where protection is genuinely required (for example if the employee has access to confidential information). In principle, this makes sense, but it does ignore the lack of certainty about whether a particular clause is enforceable until tested in court, the expense of challenging such a clause in these days when access to justice is increasingly limited, and the temptation to impose a doubtful clause simply for deterrent effect.
The government considers that worries about the risk that employers might penalise zero hours workers who turn down offers of employment can be addressed by greater clarity over contract terms, which may be provided by a combination of an “employer-led” code of practice and the provision of model clauses. Good luck with that!
The consultation closes on 13 March. In the meantime, a Private Members’ Bill for the prohibition of zero hours contracts is due to have its second reading at the end of February but is unlikely to get any further, not least because this appears to be a cure that many of those affected simply do not want.
