By Pravin Jeyaraj
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. By Pravin Jeyaraj
Given the contribution of key workers during the pandemic and throughout lockdown and local restriction, we agree with the TUC that they deserve a "decent" pay rise. This is even more important for those key workers who are on insecure zero hours contracts. The precariousness of their work and income should at least be balanced, even in part, by a wage the covers the actual cost of living.
From 1 April 2021, the minimum wage for those aged 25 and over will be £8.91. By comparison, the real Living Wage is £10.85 for those in Greater London and £9.50 for those outside. By Pravin Jeyaraj 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. By Pravin Jeyaraj
Universities
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. Local authorities
There are, on average, two and a half times as many female zero hours workers, compared to male zero hours workers, in the 222 local authorities across the UK that use zero hour contracts. Some local authorities have three and four times as many women on zero hours contracts than men. Some local authorities have between six and ten times as many women on zero hours contracts than men. One local authority (North Hertfordshire District Council) even has 18 times as many women on zero hours contracts compared to men. NHS organisations
There are, on average, more than three times as many female zero hours workers, compared to male zero hours workers, in the 142 NHs organisations across the UK that use zero hour contracts. Most organisations have between two and ten times as many women on zero hours contracts than men.
By Pravin Jeyaraj
The data reveals that, for universities and local authorities, there are almost twice as many organisations where women on zero hours contracts outnumber men.
Source: Zero Hours Justice
Source: Zero Hours Justice For NHS employers, there are four times as many organisations where there are more women on zero hours contracts, compared men.
Source: Zero Hours Justice 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.
By Pravin Jeyaraj
Sixty-two percent of people on zero hours contracts are categorised as working part-time. In addition, the data also reveals that, for those zero hours contract workers who are working two jobs, the average weekly number of hours worked is 17.7 hours. Those zero hours contract workers who are only doing one job are working an average of 25.5 hours a week. One argument often put forward by employers in favour of zero hours contracts is that it allows them to adjust staffing levels to match unpredictable business demand. But, if a sizeable proportion of zero hours workers are working full time hours or a weekly average of around 20 to 30 hours, it could be argued that these workers should not be on zero hours contracts. The volume of work available suggests that they should be on permanent or fixed term contracts or contracts for a fixed or minimum number of hours that matches their actual working pattern. Furthermore, the ONS data also reveals that around 50% of zero hours contract workers have been with their current employer for more than two years. If they are also working regular hours or a regular number of hours each week, they really should be on a permanent employment contract. From Zero Hours Justice's own observations of the people who have contacted us for help, many zero hours contract workers end up in regular patterns of work for long periods of time, without necessarily earning the same level of employment rights as permanent staff. 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. BREAKDOWN OF ZERO HOURS CONTRACTS BY INDUSTRY AND OCCUPATION Most zero hours contract workers (40%) work in elementary occupations and process, plant and machine operations. Caring, leisure and other service occupations make up 19% of zero hours contract workers, while 8.6% work in sales and customer services roles.
Source: Office for National Statistics
By Pravin Jeyaraj
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.
However, the Supreme Court ruled that the correct starting point was not the contract but the purpose of section 230 of Employment Rights Act 1996, where “worker” is defined in law. The purpose of the legislation was “to protect vulnerable workers from being paid too little for the work they do, required to work excessive hours or subjected to other forms of unfair treatment” (Para 71). Citing another case, Byrne Bros (Formwork) Ltd v Baird[2002], the reason for the protection was because employees and workers are in “a subordinate and dependent position” vis-a-vis their employer. Whilst the terms of the written contract were important, it was also important to consider whether the written terms really reflected the relationship between Uber and the drivers. For casual and zero hours workers, this position stated by the court means that it may not be enough for an employer to simply refer to the terms of the contract to deny rights that are only available to employees. Casual work and zero hours contracts are largely intended for situations where the work is seasonal or short-term and demand is difficult to predict. A contract or written terms of engagement may emphasise the freedom to accept or decline work, the lack of any obligation on the employer’s part to guarantee work and absence of any continuity of employment. Nevertheless, if a worker ends up developing a regular pattern of work over at least two years in practice, it could and should be argued and accepted that the worker is an employee in practice. Unfortunately, however, this is not a hard and fast rule and depends very much on the specific circumstances and situation of a worker. If employers do not accept a worker’s argument, they may well have to argue their case at an employment tribunal, referring to other cases.
As a result of the Uber judgement, the Financial Times [may require subscription] has called on the government to take “a wider look at how it regulates the labour market as novel forms of work proliferate” and to be more proactive in enforcing the existing laws: “Every court has agreed with the Supreme Court’s interpretation but no agency proactively sought to enforce it. The government’s recently created position of director of labour market enforcement is soon to be vacant. The government must move fast to fill it.” 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?
By Pravin Jeyaraj
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.” * Real name has not been used
The vast majority of cases that Zero Hours Justice has received this year have been related to Covid-19. It is clear that the pandemic, especially the government restrictions and lockdown, have simply magnified the negative effects of zero hours contracts and insecure work. The people we have seen affected have been a diverse group, including invigilators who lost work when exams were cancelled this summer, local council workers, facilities staff working at Manchester Airport, shop workers and hospitality staff. Most shockingly, we have seen experienced, registered nurses on bank contracts with many years experience simply dumped by the NHS in the middle of a public health crisis. As a result, we would like to let you know about Bureau Local and The Daily Mirror's Is Work Working? project, in which is intended to support you to tell your own stories of being in insecure work. They are running a series of online events and workshops to help you share your experience. It is hoped that the project will provide a great opportunity to shine a light on an under-reported area, particularly as people will be telling and shaping their own stories in a unique way. The successful participants will be paid for their involvement and will ultimately see their stories published in The Daily Mirror and on The Bureau of Investigative Journalism’s website. The first event, an online Open Newsroom, takes place on 4th December at 1pm. You can find out more information from Bureau Local's website and this The Daily Mirror article. |
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