Zero hours, zero protection, zero remedy?

Published on: 24/08/2018

#Atypical & Flexible Working

As we blogged in June, individuals on zero hours contracts can bring claims for less favourable treatment of part-time workers by comparing to compare themselves to full-time workers even though they have different kinds of contracts.

More recently, the Employment Appeal Tribunal (“EAT”) Judgment in Rice Shack Ltd v Obi was published.  The EAT upheld an ET decision that a zero hours worker who was suspended on no pay was entitled to her lost earnings based on an average of previous weekly pay for the entire duration of her suspension.

The decision might appear surprising because Ms Obi had started a new and better paid job while she was suspended.  The point is that Ms Obi was not breaching any contract because, since 2015, zero hours contracts are not allowed to prevent the worker having another job but Rice Shack had breached her contract because the contract did not permit suspension on no pay.

A further Judgment of the EAT was released this week in Matei v Brooknight Guarding Limited which shows that these are not the only employment rights which can be available to zero hours workers.

Mr Matei was engaged by Brooknight as a security guard on a zero hours contract.  He worked mostly on Mitie sites, although he was assigned to different sites for different clients as and when required. He was dismissed after 21 months.

He bought a successful ET claim (upheld by the EAT) that he was an agency worker.  The ET decided that, despite Brooknight arguing that it was not a temporary work agency, Mr Matei had been supplied to work temporarily for Mitie, the end-user, and worked under Mitie’s supervision and direction.  For that reason, he was found to be an agency worker and therefore legally entitled to the same pay and working conditions as Mitie’s own employees after 12 weeks of work.

Brooknight appealed, arguing that the ET had got the law wrong.  They asserted that the fact that Mr Matei was on a zero-hour contract did not mean he was not a permanent employee. They asserted that he was and, as such, he could not be an agency worker.  This was rejected by the EAT, which felt that the evidence of the Claimant, Mitie and even Brooknight supported a finding that this was temporary because it was not permanent or indefinite.

This case again shows that zero hours contracts do not take workers outside of statutory employment protections, despite what the more vociferous opponents (and proponents) of zero hours working would like people to believe.



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