Employment Status

Employment status is very muchin the news particularly, given the publicity which surrounds zerohours contracts and the implications for employers and employeesalike. An A typical worker is:

• Where the pattern of workdoes not fit in with the classic or traditional concept of anemployee working full or part-time for a single employer under acontract of service of indefinite length.

The clarification of anindividual as either an employee working under a contract ofservice, a worker or a self-employed consultant working under acontract for services is of some significance as the status of theindividual will determine what rights and protections theindividual will have.

Employees have the greatestlevel of protection, as working patterns however, become moreflexible the label attached to the individual by the employer maynot be conclusive.

There is no prescriptiveapproach for determining the status of an individual. Eachindividual arrangement can be scrutinised either by an EmploymentTribunal or indeed by the Inland Revenue both of whom may look at aset of circumstances and reach a different conclusion.

At the outset of therelationship it is worth while for an employer to decide what typeof working arrangement it wishes to enter into in relation to theindividual worker.

The popularity of zero hoursworkers has given a large degree of flexibility to both employersand employees. What is now termed as a zero hours workerwould historically have been called a casual worker. Suchworkers are often used in industries which are seasonal such asagriculture and tourism, to meet fluctuating demands and in thepublic sector for example, in the care industry.

A zero hours contracts istypically one under which the employer does not guarantee toprovide work and pays only for the work actually done. Eventhen there can be a risk to the employer that a pattern of workdevelops and a worker may then be able to point towards a contractof employment. The test are again non-prescriptive and varyhowever, the important ingredient in an employer/employee contextis to establish sufficient mutuality of obligation. Thismeans that the employer is obliged to provide work and theindividual is required to accept it.

Zero hours contract havebecome a political hot potato with each political party expressingits own views. Further to the election on 7 May 2015 we willhave some sense as to what to expect in terms of legislation andzero hours contracts.

In response to a review ofzero hours working, the Government had produced the Small Business,Enterprise and Employment Act 2015 which in the context of seekingto ban exclusivity had defined a zero hours contract. Thedefinition "a contract of employment or other workers contractunder which a worker undertakes to perform work conditionally onthe employer making such work available, but there is no certaintyof such work being available".

The Conservative Government inaddition to placing a ban on exclusivity clauses in zero hourscontract was also committed to improving the guidance in relationto such contracts. The bill was not however enacted beforethe dissolution of the Government at the end of March 2015. The ban on exclusivity is however, very much still on the politicalagenda if the Conservative Party return to power.

In the meantime, in the caseof Southern v Britannia Hotels Limited a zero hours worker wasawarded £19,500 for injury to feelings for harassment. Inreaching its decision the Employment Tribunal noted that not onlythe Claimants youth and mental health but also the fact that partof her vulnerability arose from her status as a zero hoursworker. The Claimant Miss Southern felt trapped and fearfulthat shifts may be reduced if she complained about the conduct ofher manager.

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.