Zero hours contracts have been the subject of debate and media
attention for some time now as they continue to be used by
employers whose needs for workers fluctuate. The most up-to-date
Office for National Statistics report on zero hours contracts,
published in September 2015, stated that around 744,000 people were
employed on zero hours contracts in their main employment between
April and June 2015, representing 2.4 per cent of all people in
employment. Zero hours contracts are often used within, for
example, the retail industry, and no doubt this figure will have
risen to accommodate the Christmas shopping rush, even if the now
infamous Black Friday sales were not quite as eventful this year as
Much has been said about the pros and cons of zero hours
contracts, with the exclusivity clauses which they often contain
coming under particular scrutiny.
Section 27A(3) of the Employment Rights Act 1996 (ERA) defines
an exclusivity clause 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, in effect, therefore limit a worker
from working for someone else, even though the employer with whom
that employee had contracted was not obliged to provide them with
any paid work.
Whilst section 27A of the ERA was enacted in response to this
problem, rendering such clauses unenforceable, the efficacy of this
amendment was questionable since an employer could simply choose
not to give any work to an employee who did work for another
However, the Exclusivity Terms in Zero Hours Contracts (Redress)
Regulations 2015, which came into force on 11 January 2016, seek to
remove the ability of employers to circumvent section 27A,
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 that 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
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.)
Finally section 27A of the ERA has been given the bite that
Parliament intended when the amendment to the ERA was first enacted
in May 2015.
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