Ask Us: Zero hours worker claiming set hours
Hi, I run a pub and it is the industry norm to employ part time staff on zero hours contracts. We do this but an employee that has been with us for the last 2½ years is now claiming she has a right to contracted hours of 16 hours per week. Over the last couple of years she has worked anything from 8 to 30 hours per week, and she probably has worked on average 16 hours per week. Does she have the right to those hours?
A good question, and probably one many other hospitality employers may well be wondering about as the ‘gig economy’ receives an increased profile.
There is a concept in employment law called ‘custom and practice’ and this means that whatever is written down in a contract can be over-ridden by what happens in reality. Written contract terms may cover duties, work location, working times, pay, annual leave etc and if any of these are different in practice to what is documented, over time, the practice becomes the established terms.
For example, if working hours are written down as Monday to Friday 9-5 but staff consistently leave work at 3pm on a Friday. That early 3pm finish will become contractual through ‘custom and practice’.
There is no set duration for the practice to become reality – it all depends on the circumstances. If expectations have been managed in advance eg for the month of December, it is formally advised that all employees will be working 40 hours per week as it is peak trade for the festive season, there is a clear notification that this is for a finite period. But if there is no clear reason for an uplift in working hours, and it is ongoing, then that practice could become contractual.
So, to answer your question, yes, there is probably a legal right to 16 guaranteed hours per week. Should the work not be available in the future and you need to drop her hours down, you could do this, but it would be a contractual change and you would need to consult and follow a fair process.
Contractual hours mean a commitment on the employer to provide work and pay. Failure to do so could be an unlawful deduction of wages and breach of contract. It could also give rise to employment status rather than worker status which gives the employee protection from unfair dismissal.
At the time of writing this response, there is a Government gig-economy review underway (the ‘Taylor Review’). Although the review is not yet complete, one recommendation being considered is a higher hourly rate for zero hours workers. Policy recommendations from the review are due to be published in the summer.
The Manifestoes for the 2017 General Election include ‘Proper protection for gig workers’ from the Conservatives and Labour want to ban zero hours contracts – instead having workers guaranteed a minimum amount of hours. This approach was recently undertaken on a voluntary basis by Wetherspoons and McDonalds. But where used for the right reasons (for unpredictable spikes in activity) there is an ethical place for zero hours contracts.
Whilst the law currently (and most likely in the future) provides for a degree of non-committal approach from employers, there is a case for the more ethical approach that will engage employees and help attract and retain future talent. It would also remove the time and resource needed to defend flexible employment practices that are still establishing precedents in the courts.
As a note, it’s worth considering the following about Zero Hours workers:
Zero hours officially provides ‘worker’ status (rather than ‘employee’) but with the high profile and risk of contractual hours being established by custom and practice, it would be prudent to be cautious and consider arrangements to have employment status.
Finally, don’t forget zero hours workers still accrue annual leave on an ‘as worked’ basis. Citizens Advice research this month revealed that 50% of zero hours workers were not told about their annual leave entitlement.
Do get in touch with us direct if we can offer any further advice around flexible work options for employers.