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
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.
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.
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, 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:
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.
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.
Pravin Jeyaraj, Communications Officer for Zero Hours Justice, said: “Whilst we accept that that there is no contractual obligation to pay casual workers for work not done, it is not unreasonable to expect employers to be flexible in the current, unusual circumstances. Despite the nature of their working arrangements, many of the casual workers have have loyally undertaken work for Broxbourne Council for many years. They could reasonably expect that, had it not been for the pandemic and lockdown, there would have been work for them to do.”
Broxbourne Council has a cohort of 458 casual workers. One of those affected by the decision not to pay for cancelled shifts during lockdown, Dawn Etheridge, said: “I was very disappointed with the council's decision. It is an affluent borough that has admitted it did not need to use the furlough scheme as it had enough money. Despite this, it could not see fit to support some of its lowest-paid workers, even for those shifts they already had booked before the pandemic started. My family have over 28 years of service for the borough between us. I know we have only been casual workers but that's not because we didn't want to be permanent workers - it was something that was never offered to us. To lose a large portion of your salary overnight caused real financial hardship to me. I have worked for Broxbourne Council regularly for eight year, an average of 10 hours a week. 10 hours a week on minimum wage may not seem a lot to some but if you are on a low income bringing up a family on your own it makes a huge difference. My son also worked for Broxbourne Council as a casual worker so to lose two salaries from one family was very hard. Luckily my son is younger and was able to find some work during the pandemic to help out. I am now nearly 60, so was cautious about going out to find work during a global pandemic.”
There is no obligation for employers to pay staff for cancelled shifts, which is a big problem for all zero hours contracts staff. However, in July 2019, the Department for Business, Energy and Industry consulted on various proposals that would benefit flexible workers, including compensation where shifts are cancelled at short notice. The proposals were proposed by the Low Pay Commission.
Zero Hours Justice was launched in January 2020 by a coalition of concerned citizens to:
It is led by Ian Hodson, who is also president of the Bakers Food and Allied Workers Union, and founded and funded by Julian Richer, the founder of Richer Sounds and author of “The Ethical Capitalist”.
For more information and to share your story or offer help or support, see www.zerohoursjustice.org
By Pravin Jeyaraj
James Johnson-Flint, Director of Zero Hours Justice, said: “Zero Hours Justice was founded to campaign against the use of zero hours contracts and the insecurity they bring in terms of hours and pay. By demonstrating our commitment to pay the Living Wage, we are putting our money where are mouth is and making sure our own staff are paid fairly.”
Katherine Chapman, Director, Living Wage Foundation said: “We’re delighted that Zero Hours Justice has joined the movement of over 6,000 responsible employers across the UK who voluntarily commit to go further than the government minimum to make sure all their staff earn enough to live on.
“They join thousands of small businesses, as well as household names such as Burberry, Barclays, Chelsea and Everton Football Clubs, Lush, and many more. These businesses recognise that paying the real Living Wage is the mark of a responsible employer and they, like Zero Hours Justice, believe that a hard day’s work deserves a fair day’s pay. "
If you work of an employer who believes that staff should be paid enough to live on, then why not show your commitment by becoming accredited as a Living Wage Employer
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Images can be downloaded from here. Image of Julian Richer should be credited to Gerardo Jaconelli.