Zero Hours Justice's minimum criteria for employers who use zero hours contracts closely matches the rights that would be available to zero hours workers under the Directive on Transparent and Predictable Working Conditions. We therefore back the Trade Union Congress (TUC)'s call for the government to "keep the pace with the EU on rights" and "bring forward the long-awaited employment bill to end exploitative work practices like zero-hours contracts, once and for all".

Our own analysis shows that many zero hours workers already have what are in effect long-term, regular and predictable working patterns, even it is not technically guaranteed. We see no reason why such workers should not be entitled to the protections that would be available to them if they were on permanent or fixed term contracts.

It's not only the EU that the UK is at risk of falling behind but also English-speaking common law Commonwealth jurisdictions, the very countries who similarity to the UK Brexit was meant to emphasise.  Last year, the Australian government put forward legislation that would compel employers to offer permanent contracts to casual workers who have worked for them for a year and have been in regular shifts for six months. In 2017, New Zealand effectively banned zero hours contracts, followed by Ireland on Christmas Day in 2019. A court ruling in South Africa has found that out not guaranteeing minimum hours constituted "less favourable treatment", a breach of the Labour Relations Act 2015.

In 2019, the UK did consult on a number of reforms, including compensation for shifts cancelled at short notice and minimum notice periods for cancelling shifts. Nothing much appears have to happened with that consultation. Zero Hours Justice has receive correspondence from the Department for Business, Energy and Industrial Strategy confirming that forthcoming legislation would contain a right for zero hours workers to request a more predictable contract after 26 weeks of service. The problem is that no-one knows when the proposed employment bill will materialise.

Yet, when the clocks went forward at 1 am on 28 March 2020 for British Summer Time, many of them would haver automatically lost an hour's work. 

Zero hours workers are paid at an hourly rate for the hours actually worked. So if they were working at 1 am, they may well end up a losing an hour's pay, compared to if they had worked on any other night.

On the plus side, if they are working when the clocks go back at 2 am on 31 October for Greenwich Mean Time, then they should be paid an extra hour. They are effectively working the hour between 1 am and 2 am twice.

But it is not enough for employers to argue that the lost hour in March is balanced by the extra hour in October. Firstly, the insecurity of zero hours contracts means that someone working 28 March may well not ben working in 31 October. Secondly, if a worker is on the minimum wage, the hourly rate in October will usually be higher than the hourly rate in March.

There are, on average, almost twice as many female zero hours workers, compared to male zero hours workers, in the 71 universities that use zero hour contracts. Some universities have three and four times as many women on zero hours contracts than men.  

The data reveals that, for universities and local authorities, there are almost twice as many organisations where women on zero hours contracts outnumber men.  ​

Our research reflects the Office for National Statistics' Labour Force Survey, which shows that 3.3% of women in employment are on zero hours contract, compared to 2.7% of men.

Why is this important? In the past 12 months, we have seen employers relying on contractual obligations to decide whom to furlough or make redundant. So, those on permanent employment contracts have tended to benefit from furlough or redundancy pay,. But their colleagues on zero hours or casual contracts simply see their work disappear, even though they may be working like permanent staff. Some employers such as IKEA have furloughed zero hours workers. But other zero hours workers have, with our help, had to fight to be furloughed or receive redundancy pay, not always successfully. After all, if you were an employer, why would you pay someone for work not being done if you have not legal obligation to do so? 

HOW HAS COVID AFFECTED THE USE OF ZERO HOURS CONTRACTS?

During the first lockdown between April and June 2020, the number of zero hours contracts shockingly broke the one-million barrier.

But, according to today's ONS data, the number of people of zero hours contracts is back to pre-Covid levels and increasing.

For the period October to December 2020, there were 978,000 people on zero hours contracts, compared to 980,000 in the first quarter of 2020.

Between July and September 2020, the number of zero hours contract fell from over a million to 957,000 but the end of the year, it it had risen again to the level prior to the first lockdown. 

They may also be entitled to statutory sick pay and maternity or paternity pay.

The case, Uber BV and others  v Aslam and others, relates specifically to the status of so-called “gig economy” workers, rather than casual workers or zero hours contract workers. Zero Hours Justice is concerned about the inappropriate use of casual workers and freelancers by employers. However, it has no objection in principle to the “gig economy”, in which people work on a freelance or short term contract basis and are paid for each job rather than at an hourly rate.

​With regard to the Uber case, the Supreme Court decided that the drivers were workers because what happened in practice did not match what was stated in Uber’s Service Agreement:
 
Pay
Uber dictated how much drivers were paid for a job (fare) and the drivers could not charge more than that. The only way that a driver can increase pay is by working longer hours (switching on the app) and constantly meeting measures of performance.
 
Unilateral contract
The contract was imposed by Uber and drivers had no say in its terms.
 
Limited choice to accept work
When logged in to the app, a driver’s choice to accept requests was constrained by Uber. The driver’s rate of acceptance and cancellation of trip requests was monitored and a penalty was imposed if too many requests were declined or cancelled. The penalty was to automatically log the driver out of the app for 10 minutes, preventing them from working until allowed to log back in.
 
Significant control over provision of services
A failure to maintain an average rating leads to a series of warnings and eventual termination. Communication between passengers and drivers was restricted to the minimum necessary to perform particular trips and active steps were taken to prevent drivers from establishing a relationship with passengers beyond the individual ride.
 
According to Uber, the Supreme Court ruling applies to only a small group of drivers from a period of time when a particular contract was in operation. However, the ruling offers self-employed people in a similar position significant encouragement that things will change for the better this year, following this landmark judgement.

 By Pravin Jeyaraj

The coronavirus pandemic, however, has exposed a different reality. What Zero Hours Justice has found is that many casual workers have still had regular patterns and hours of work, as if they are permanent full-time or part-time employees, but without the same level of employment rights. When there was a shortage of staff and enough work to go around, the lack of a guarantee of work was less noticeable. In 2020, however, the government's strategy for tackling Covid-19 has lead to employers having to close down or reduce services for indeterminate periods of time. As a result, the lack of a guarantee of work has seen zero hours workers of all forms experience a drastic of loss of what had been regular income.

Many employers, but not all, have simply chosen to not furlough zero hours contract workers, even though individual employment situation would have made workers eligible to be furloughed. Often, the reason for not furloughing zero hours contract workers was the lack of any contractual right to pay for work not performed. On the face of it, this sounds like a reasonable position to take, until one takes into account that many zero hours contract workers may actually be working like full-time or part-time employees. Furthermore, they may also lose out on employment rights because the breaks in their regular working pattern mean they cannot claim to have continuous employment.  

Australia are just the latest in a line of countries with common law jurisdiction to attempt to significantly improve the lot of zero hours contract workers. In April 2017, zero hours contracts were effectively banned by New Zealand. Then, in 2018, on Christmas day, Ireland banned the use of zero hours contracts except in certain limited circumstances. A recent court ruling in South Africa, which has a hybrid legal system, found that amendments to the Labour Relations Act in 2015 meant zero hours contract workers could not be treated less favourably than permanent employees doing the same work. In this case, it was decided that not being guaranteed minimum hours was less favourable treatment. 

The United Kingdom, by comparison, has lagged behind its common law counterparts in the protection of zero hours contract workers. The most it has managed has been the banning of exclusivity clauses that zero hours contract workers from finding additional work when their main employer could not guarantee work. In 2019, it consulted on a number of reforms, including compensation for shifts cancelled at short notice and the requirement for a minimum notice period to cancelling shifts. The government appears to have forgotten about this consultation. If such a change in a law had been introduced, it would have made a big difference to the thousands of zero hours contract workers who suddenly lost work during the pandemic. But that would have been just the tip of the iceberg. More importantly, in the post-Brexit economic environment, how does the UK government hope to agree adequate free trade deals with other English-speaking countries when its protection of the most vulnerable workers appear to be weaker?

George*, one of the zero hours contract workers affected, said: “"Having previously been told that the zero-hours staff wouldn't be furloughed, I contacted Zero Hours Justice for advice and support.  After they contacted my employer, a decision has since been made to place me and my zero-hour colleagues on furlough, which is a great lifeline.  Thanks to Zero Hours Justice in helping to achieve this great success."

James Johnson-Flint, Director for Zero Hours Justice, said: “It is great that ABM have been flexible about furloughing its zero hours contract workers. We have often found that employers, once they decide not to furlough, rigidly stick to their decision despite good arguments to the contrary and without any sense of obligation to the staff on whom they depend to generate money. But the zero hours contract workers should never have been put in the position of having to push to be furloughed. There have been various government schemes to help employers support employees from 1 November – the now postponed Job Retention Bonus, Job Support Scheme and now extended Coronavirus Job Retention Scheme. As soon as the second lockdown was announced, a large company such as ABM should have instinctively thought it had the means to look after its zero hours staff.”