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With the introduction of the Agency Workers Regulations in 2010, many companies are believed to be using far more zero-hours contract workers instead of Agency temps.
Our partners at the HR Kiosk get a lot of queries from people employed on zero-hours contracts, so here we look at these types of contracts in more detail.
Three types of working individuals
There are basically three different types of working individuals:
- An employee
- A worker (someone who works on a casual basis or is an agency temp)
- Someone who is self-employed (i.e. a freelancer or contractor - for more information on determining your legal status if you are a contractor, see our comprehensive IR35 hub).
It's important for the individual and the employer to establish their status, as:
- Employees generally have more employment rights than workers or those who are self-employed (see our guide to your Employment Rights here)
- There's a difference in National Insurance contributions, tax and benefits between employees/workers and those who are self-employed.
You find out more about internships/work experience in our interns article.
What is a zero-hours contract?
Zero-hour contracts give businesses a high degree of flexibility, as they give no guarantee to the individual worker of a minimum number of working hours. The individual worker can be used as and when required and is only paid for the hours they work.
The worker won’t obtain ‘employee’ status generally, and won’t build up any continuity of service (if the contract is appropriately written and accurately reflects the relationship between the employer and the worker).
The worker shouldn’t be required to undertake any work that is offered and there should be no detriment to them if they decline work or work for another company. This would otherwise indicate they have employee status. ‘Mutuality of obligation’ is a key requirement for a contract of employment – where the employer is obliged to offer and pay for work and the employee is obliged to accept and perform the work.
For a zero-hours contract to be legitimate there must not be any mutuality of obligation between assignments given to and accepted by the worker (and this means that holiday entitlement shouldn’t accrue between assignments, only during the period of an assignment). If you’re an employer and need help calculating your zero-hours workers’ holiday entitlement, as there are many issues here to keep abreast of, please talk to Lesley Furber at The HR Kiosk, as she has experience of providing this help.
If you're employed on a zero-hour contract
You'll generally be a worker if employed on a zero-hour contract (some zero-hours contracts can be full employee contracts, although this is more unusual). A worker is a broader category than an ‘employee’, introduced by European Union legislation (although there is no EU definition).
A worker is anyone who works for an employer under a contract of employment (but this may or may not be a written contract and the contract may not come directly from the employer) and performs the work personally (which can include some freelancers).
Workers are usually:
- Agency workers (‘temps’) – the Agency who finds you work pays your wages (or, if you're a contractor, you may get work through an Agency but an Umbrella company pays your wages), and the company who hires you pays a fee to the Agency for your work
- Short-term casual workers hired directly by the employer (often with a written contract and usually paid via PAYE, with tax and national insurance contributions deducted) – casual workers aren't usually part of the permanent workforce but supply their services on an irregular or flexible basis or have a ‘minimum guaranteed hours’ or ‘zero-hour’ contract
- Some freelancers and contractors - there are occasions when those who are self-employed for tax purposes may be classified as ‘workers’ for employment rights purposes – including when a self-employed person is personally providing a service under a contract for another party to a client (i.e. not providing services directly to the client or business). You can't be a ‘worker’ if you're self-employed and the contract between yourself and your client includes a genuine right entitling you to ‘substitute’ someone else to do the work.
Exclusivity clauses
On 26th May 2015, exclusivity clauses in zero-hours contracts became illegal (in England, Scotland and Wales; in 2022 this has still not yet been enacted by Northern Ireland but may be in the future) – which means that any clause that stops a worker “doing work or performing services” under another contract (with another employer) or stops the worker from doing so “without the employer’s consent” will be unenforceable by the employer. The government published the draft ‘Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015, in November.
This became law on 11th January 2016, which means that zero-hours workers will have a right not to be unfairly dismissed if the reason for this dismissal is that they failed to comply with an exclusivity clause (no qualifying period needed); they also have the right not to face any detriment because they failed to comply with an exclusivity clause.
However, in May 2022 the Government has said that they will extend the existing ban on exclusivity clauses in zero hours contracts, to all types of contracts, where a worker or employee has a guaranteed weekly income at or below the lower earnings limit for National Insurance purposes (currently £123 per week). The legislation for this is expected later in 2022, and has been welcomed by the hospitality industry, which is facing severe staff shortages because of Brexit and the pandemic. The legislation came into effect on 5th December 2022.
Other developments
In 2019 the Government announced a proposed Employment Bill, which would give workers a right, where they do not have guaranteed hours of work, to request a more predictable contract. However, in the recent Queen’s Speech in May 2022, the Employment Bill was absent again, and there is no timescale for when this new right might now be introduced.
In 2015, a zero-hours contract worker, who feared reporting allegations of sexual harassment by her line manager in case she lost her job, was awarded £19,500 for sexual harassment (S v Britannia Hotels Ltd). The Tribunal was very critical of the employer’s investigation and their failure to follow up the worker’s complaints, the lack of any clear action against the alleged perpetrator and the long delay in completing the investigation.
In October 2015, the government published guidance for employers on zero-hours contracts, detailing how to use them appropriately. You can read the guidance here.
In early April 2018 the Welsh Government introduced new requirements for employers of care staff who look after people in their own homes. Employers will need to now:
- Give care workers, who are employed on a zero-hours contract, a choice of contract after three months - they can choose to continue on a zero-hours contract of make alternative contractual arrangements
- Ensure that time allocated for travel is separate to caring so that ‘call-clipping’ (shortening of care sessions) does not happen.
In addition, a register of domiciliary care workers will be set up (inside the existing Social Care Wales’ workforce register).
Does a temporary/casual worker ever become an employee?
Unfortunately, there’s no simple answer to this question.
If an employer engages people on an ad-hoc basis to help out during staff shortages or at busy times of the year, or when an emergency arises, knowing full well that the individual may or may not be available when the employer needs them, then they won’t be employees.
But, if the employer regularises the arrangement with those workers and undertakes to provide them with work on specified days and at specified times of the week, on the understanding (accepted by the individual) that they will present themselves for work on those days and at those times, the chances are that the relationship between the employer and the workers will change to that of employer and employee.
The other factors that need to be taken into account in determining employee status include whether an individual is expected to carry out the work personally and whether the employer has had sufficient control over the way the work was done.
As always, it will be for an employment tribunal to determine the true nature of the contractual relationship between an employer and a worker, if an agreement cannot be made between the employer and worker.
An important Tribunal Case at the end of 2012 found that six individuals employed on zero-hours contracts were actually employees.
Pulse Healthcare Limited v Care Watch Care Services Limited
In Pulse Healthcare Limited v Care Watch Care Services Limited plus others, the six individuals were engaged by Carewatch to provide 24-hour care to a severely disabled individual. Pulse took over the service contract from Carewatch and the individuals claimed they were employees and that their employment transferred under TUPE. Pulse argued they were not employees and did not have sufficient continuity of employment to claim unfair dismissal but the Employment Tribunal disagreed.
The ET said there was sufficient mutuality of obligation for the claimants to be employed (i.e. they were required to personally perform the work, they were obliged to do the work and Carewatch undertook to offer the work). The ET also disagreed that the claimants were engaged on a succession of individual contracts as opposed to an ‘umbrella’ contract and therefore did not have sufficient continuity of service – the ET felt they were employed under a ‘global’ contract to provide a critical care package.
If it’s established that the employment relationship has changed to that of an employer and employee then the start of the individual's continuous period of employment will also need to be established, in order to determine what statutory (and perhaps contractual) rights the individual has.
Borrer v Cardinal Security Ltd
In an interesting 2013 case, Borrer v Cardinal Security Ltd, Borrer was a Security Guard for Cardinal Security for four years. His main place of work was at Morrisons in Brighton, where he worked for two years on a regular 48 hour week. His Contract with Cardinal (which could be described as a zero-hours contract) did not specify his hours of work but said “your working hours will be specified by your line manager”.
When working at Morrisons Brighton he was informed about his hours of work by text message from his manager or by contacting the control centre. In October 2011 Morrisons made a complaint about Borrer and requested that he be moved from the Brighton store (as they were entitled to under the contract with the security company).
Mr Borrer worked for other clients and a few weeks later was offered a full time position with Morrisons Seaford store, where he worked for the next few weeks The Manager of the Seaford store was also unhappy with him and eventually Cardinal found him shifts at another of their clients. Borrer told Cardinal he was resigning because he was not being offered enough hours – during that conversation he was offered a full-time position of 38 hours per week at another store in Brighton.
A week later he wrote to Cardinal confirming his resignation, claiming Cardinal were in breach of contract and rejecting their statement he was on a zero-hours contract.
The original Employment Tribunal found that there was nothing to imply that he worked a fixed number of hours per week (48) and there was no breach of contract, so he could not claim unfair constructive dismissal. The Employment Appeal Tribunal allowed the appeal and found that Borrer had been contractually entitled to work his claimed 48 hours per week (and there was no doubt he was an employee).
Smith v Carillion (JM) Ltd
In 2015, in Smith v Carillion (JM) Ltd, the Court of Appeal confirmed that a contract could not be implied between an agency worker and the end-user of his services unless it was necessary to do so. The Court also made it clear that it is not against public policy for an end-user to obtain services by using agency staff, even if the purpose of doing so is to avoid legal obligations (which would otherwise arise if the agency worker was directly employed by the end-user). Although, in this case, there were various potential indicators that Mr Smith had employee or worker status with the end-user, the Court decided that none of these factors were necessarily inconsistent with a genuine agency worker arrangement.
In August 2013 a legal challenge was taken out against SportsDirect for their use of zero-hour contracts – see the details here.
Can a worker on a zero-hours contract be an agency worker?
An unusual question, as usually the question would be “am I an employee or a worker”. In Brooknight Guarding Limited v Matei, in September 2018, Mr Matei argued that he was an agency worker and so entitled to the same basic employment rights as permanent employees working at his employer’s client, where he provided his services.
Matei was employed by Brooknight, who offer security services, as a ‘cover’ security guard, providing services to Brooknights clients, on a zero-hours contract. He was required to work at any site Brooknight sent him to, but he spent the majority of his working time for their client Mitie at a Citi Group site in London. He worked for Brooknight for 21 months before being dismissed. Matei’s claim was that as an agency worker, after 12 weeks he was entitled to the same employment conditions as if had been employed by the client.
The Employment Tribunal found in his favour and said that Brooknight was acting as a temporary work agency (within the meaning of the Agency Workers Regulations) as it engaged in the economic activity of supplying Matei to work temporarily for and under the supervision of and direction of Mitie/Citi Group.
Brooknight appealed but the EAT agreed with the Tribunal. This successful claim meant that Mr Matei could claim additional remuneration (as he should have received equal pay, hours and holiday as a permanent worker at Mitie/Citi Group after 12 weeks). The key to this decision was that he was a ‘cover’ worker, so his placements were temporary – if a person was supplied on an indefinite or permanent basis, they wouldn’t meet the definition of an agency worker.
This judgement is important to any employer who supplies workers to clients, or employers who hire workers from other companies who specialise in supplying workers – if workers are being supplied on a temporary basis to a client, there is a risk they may be agency workers, and therefore after 12 weeks of working with the client in the same role, they may acquire the employment conditions of the clients, permanent employees.
Need more advice?
If you are an Employer and need ongoing professional help with any staff/freelance issues then talk to Lesley at The HR Kiosk - a Human Resources Consultancy for small businesses – our fees are low to reflect the pressures on small businesses and you can hire us for as much time as you need.
Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.
