Zero hours contracts – a question of balance

Many employers find themselves being squeezed between a workforce expecting to work ever more flexibly and consumers demanding 24/7 service.

At their best, flexible working arrangements benefit both employer and employee. The challenge though is often one of trust. Can an employer trust an employee to be working hard when they are not in the office? Can a job applicant trust an employer to consider their application fairly if the hours they can work are restricted by religious observance?

One area that has come in for considerable criticism during the recent election campaign has been the use, or for the headline writers, abuse of zero hours contracts.

A typical zero hours contract requires a worker to be available for work if and when called on by the employer, but does not oblige the employer to provide work. Some employers have taken this a step further by incorporating an exclusivity clause, effectively preventing the worker from working elsewhere and leaving them waiting at home for work which may or may not come.

What has changed?

Legislation banning exclusivity in zero hours contract had already been drafted following a consultation process under the coalition government and Section 153 of the Small Business, Enterprise and Employment Act 2015 was one of the first changes to the law to be brought into force after the election.

Employers are now unable to enforce any term in a contract which prohibits a worker under a zero hours contract from working elsewhere or which requires the consent of the employer to do so.

Will this make a difference?

For now, no. In reality, it was always much more likely that an employer would simply not give a worker more work if they were not available when required. The ban on exclusivity does nothing to prevent this.   Equally, by guaranteeing an hour or two a week an employer could ensure the contract falls outside the definition of a zero hours contract.

The consultation process had suggested anti avoidance regulations but surprisingly those regulations have not yet been brought into force.

How do we make this work?

It is natural that employers as well as workers want flexibility and there is no reason why zero hours contracts can’t operate for the benefit of both. Perhaps the answer isn’t in the contract or in the law, it is in the relationship. The contract and the law will always be there if one party oversteps the mark, but where an employer offers the work it has available in a fair and consistent manner to workers who are committed to working when they can neither employer nor worker will need to worry about bans on exclusivity or anti-avoidance regulations.