The rights of zero-hour workers
The phenomenon of zero-hours workers has been in the news recently with the introduction in January 2016 of regulations to give them protection against the use of exclusivity clauses by their employers. Businesses are no longer allowed to introduce them and where those clauses form part of an existing contract, they will be unenforceable.
Many employers, taking into account the extra protections afforded to employees are considering limiting the employment status of those engaged on zero-hours contracts to ‘workers’ only.
However, if this step is taken, it is worth remembering that even those taken on with worker status have certain legal rights.
National Minimum Wage and National Living Wage
The right to the minimum wage is enjoyed by all workers. From October this year, the rate will rise to:
Workers also have the right, governed by the Working Time Regulations 1998, to annual leave, pay, rest periods and breaks (although it is not thought that many workers will be working in excess of the permitted average 48-hour week, subject to any agreed opt-out).
Their annual leave allowance is 5.6 weeks, pro-rata by the number of hours actually worked.
Zero-hours contract workers also have the right to the following rest periods and breaks:
An uninterrupted break of at least twenty minutes away from the workstation if they work for six hours or more.
Each day, a rest period of not less than eleven consecutive hours (over each twenty four hour period)
Each week, a rest period of not less than twenty four hours (which must not be interrupted) in each seven day period.
Unlawful deduction of wages
Like all other workers, those on zero-hours contracts have the right not to suffer an unlawful deduction of wages by their employer. If this happens, they can take their case to an Employment Tribunal and seek reimbursement of the sums deducted.
All workers, employees or otherwise, are covered by the provisions of the Equality Act 2010, protecting them against discrimination.
Employers need to take steps to make sure that workers on zero-hours contracts should not suffer harassment or victimisation, nor be treated any less favourably than any other workers on the grounds of the nine protected characteristics (age, disability, gender reassignment, marriage or civil partnership, pregnancy or maternity, race, religion or belief, sex, sexual orientation).
The safeguards against victimisation or other detriment due to whistleblowing activity currently enjoyed by employees also apply to workers.
The Pension Act 2008 sets out the definition of ‘jobholder’ and it becomes clear that the legal definition of ‘worker’ fits nicely into it.
(1) For the purposes of this Part a jobholder is a worker—
(a) who is working or ordinarily works in Great Britain under the worker’s contract,
(b) who is aged at least 16 and under 75, and
(c) to whom qualifying earnings are payable by the employer in the relevant pay reference period (see sections 13 and 15).
This means that zero-hours workers may find themselves included in the pension auto-enrolment regime.
Automatic enrolment applies to all jobholders who are at least 22 years old and who have not reached pensionable age. If they fulfil these criteria and they earn over the automatic enrolment threshold, the employer must enrol them onto the automatic enrolment scheme.
Currently (2016/17), the threshold is £10,000 per annum, so it can be seen that the number of zero-hours workers who would qualify for automatic enrolment will be limited.
If an employer decides not to contractually classify those working on zero-hours contracts as ‘workers’ but instead as ‘employees’, this will give them additional rights regarding unfair dismissal, automatic unfair dismissal as well as other family-friendly rights to which employees on normal hours are entitled.
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