In the UK we have seen a steady rise in the use of zero hours
contracts, a development which has generated political controversy.
Under a zero hours contract, the employer does not guarantee to
provide the worker with any work and pays the worker only for work
actually carried out. The worker is expected to be available for
work if and when called on by the employer.
Zero hours contracts are used in many industries, but
particularly in the retail sector. Proponents of these types of
contracts point to their flexibility, noting that they are
particularly useful in the case of employers whose needs for
workers fluctuate from time to time.
The most up-to-date Office for National Statistics report on
zero hours contracts, published in September 2015, stated that,
between April and June 2015, around 744,000 people in the UK, or
2.4 percent of the country's workforce, were employed under
zero hours contracts for their main employment.
Yet zero hours contracts have been the subject of debate and
media scrutiny for some time, and concerns have been raised about
the need to protect zero hours workers who, because of the nature
of the contracts, are not afforded the same rights and protections
as other employees. Statistics also show that people on zero hours
contracts are more likely to be women, full-time students, or in
younger or older age groups as compared with other people in
The use of exclusivity clauses in zero hours contracts has
caused particular consternation and was the focus of much political
discourse in the UK in 2015. An exclusivity clause is defined in
the Employment Rights Act 1996 as:
"Any provision of a zero hours contract which (a) prohibits
the worker from doing work or performing services under another
contract or under any other arrangement, or (b) prohibits the
worker from doing so without the employer's consent."
An exclusivity clause could therefore prevent a worker from
working for someone else, even though the employer with whom that
employee had contracted was not providing them with any paid
On 26 May 2015, an amendment to the Employment Rights Act 1996,
rendering such clauses unenforceable, came into effect. However,
many in the UK have questioned the efficacy of the amendment. While
exclusivity clauses were made unenforceable, an employer could
simply choose not to give any work to an employee who did work for
Accordingly, Parliament enacted the Exclusivity Terms in Zero
Hours Contracts (Redress) Regulations 2015, which came into force
on 11 January 2016. These regulations provide that:
Any dismissal of an employee employed
under a zero hours contract is automatically unfair if the reason
or principal reason for the dismissal is that the employee had
breached a contractual clause prohibiting him or her from working
for another employer. An employee who is dismissed on these grounds
is, therefore, able to bring an unfair dismissal claim before an
Employment Tribunal seeking a declaration and/or compensation.
There is no qualifying period of
service required for a zero hours employee to be able to bring such
an unfair dismissal claim.
It is unlawful to subject a zero
hours worker to any detriment if they work for another employer in
breach of a clause prohibiting them from doing so. (This third
provision extends to workers, not just employees).
There is no doubt that the use of zero hours contracts will
remain an issue for debate in the UK and we can expect further
transformation in their use over the coming years. However, the new
regulations are a positive step for protecting zero hours workers
in the UK.
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In SSE Generation Limited v Hochtief Solutions AG and another decided on 21st December 2016, the Court of Session in Scotland considered a contractor's potential design liability under the NEC Form of Contract.
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