Our thoughts on the world of employment law - and beyond.

Zero hours April fool?

Election-related lectures, articles and blog entries (yes, we’re guilty too) on employment law proposals are popping up all over the place at the moment, like the Easter bunny but with less chocolate.  Feeling like a bit of a grumpy old timer I was resolutely intending to ignore the subject, but reading about the Labour party’s plans on zero hours contracts this morning has prompted me to engage – briefly at least.

As far as I can make out, Labour intends to give people working on a zero hours contract the right to request a ‘regular contract’ after 12 weeks (as opposed to 12 months, as they had previously promised).  It is pretty unclear as things stand whether this is a right to be given a ‘proper’ contract, or a right to request – along the flexible working lines.  One assumes the former is the intention, in manifesto terms at least.  The optimistic estimate is that the provision would enfranchise 90% of zero hours contract workers.

We’ve written before about the history of zero hours contracts and the proposal to outlaw ‘exclusivity’ clauses in any such contract.  I remain unconvinced that such clauses are as widespread as the media suggests.  Zero hours contracts are definitely having a zeitgeisty moment, and it appears to be accepted media wisdom that they are a Bad Thing – and in cases where individuals are deliberately kept out of other work whilst not being guaranteed or given work by their ‘employer’ that must definitely be the case.  But in other situations, they may genuinely reflect a mutual desire for a flexible working relationship, and I guess that is where Labour’s emphasis on the individual’s right to request comes in.

Pedant or otherwise, I do think that Labour’s suggestions come with inevitable caveats before they can get anywhere near being workable. Definitions of both ‘zero hours’ and ‘regular’ contracts will need a lot of thought – if the ‘regular’ contract has to reflect the worker’s hours under the previous arrangement, how will those hours be established and captured?  One can envisage a situation where minimum guaranteed hours replace zero hours, but to much the same end effect.  In addition, how is the 12 week period to be assessed and policed – are there to be anti avoidance provisions to prevent employers simply engaging new staff on identical contracts every 11 weeks?  That would just destabilise things still further. How, if at all, does this tie into unfair dismissal law – what are the ultimate sanctions (and are distinctions between employee and worker to be maintained)?

So, whilst this may be a headline-grabbing and potentially attractive measure on the face of it, I find it hard (as with so many election promises) to see how it will work in practice - though await with interest seeing how it plays out in the media.  Mr Milliband says that ‘the problem of zero-hours contracts is at the heart of the key question of this election’ (no, I don’t entirely understand that sentence either).  A rare moment in the sun for employment law – and a genuinely big issue for workers and for businesses alike.  Whether today’s proposals are the way to address that issue remains to be seen.  

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