Employers that frequently use zero hours contracts have attracted some bad publicity in the last year. One of the main criticisms was that some included ‘exclusivity clauses’ in the contract that prevented an employee working elsewhere, even though they were not guaranteed any hours of work.
In response to the public outcry against such restrictions, these exclusivity clauses were made unenforceable under provisions passed last year.
However, zero hours workers have had to wait until this week to have rights to bring claims against employers who still attempt to enforce these clauses.
On 11 January new laws were passed that give zero hours employees a right not to be unfairly dismissed and zero hours employees/workers the right to not be subjected to a detriment for failing to comply with an exclusivity clause.
In practice, an employee on a zero hours contract who has been dismissed by his employer because he has been working for another in breach of an exclusivity clause will be able to bring a claim for ‘automatic’ unfair dismissal.
The reference to it being an ‘automatic’ unfair dismissal means that if the reason for dismissal is breach of the exclusivity clause, it will be deemed unfair by the Employment Tribunal without the employee having to prove it. Further the employee will not need two years’ service before they can bring the claim. As a ground for automatic unfair dismissal there will be no qualifying period.
The unfair dismissal protection will apply to employees. The protection against detriment will also apply to workers. So in practice, if an employer decides that they will no longer use the worker, or subjects them to any other detriment because they work for another employer in breach of an exclusivity clause prohibiting them from doing so a claim can be brought in the Employment Tribunal for compensation.
These new rights provide protection for employees or other workers who work under zero hours contracts and individuals who work under “non-contractual zero hours arrangements”. It therefore covers a contract where there is no obligation on the employer to provide work or on the individual to accept it.
However, there does appear to be a simple way around this protection in that it will not apply where the contract guarantees that there will be some work provided even if this is as little as one hour of work.
*The Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015