Working ‘When Required’ - as published in the Law Society Gazette

The quickening debate on zero-hours contracts has unexpectedly energised my teenage son (this is not a verb with which he is normally associated). Sadly, his realisation that the suggested hours were matched by the pay led to a swift return to bed, or as we call it, ‘his office’.

It is an issue which is much exercising our leading politicians, some of whom show more energy than my son. Vince Cable has had quite a lot to say (perhaps hopeful that it will deflect attention from his decision to sell the Royal Mail through the local meat raffle), and on 24 April Ed Miliband even identified the specific measures an elected Labour party would introduce to combat abuse.

With 1.4 million people estimated by the Office for National Statistics to be on such contracts (and Unite suggesting the figure could be more like five million) even Nigel Farage has suggested that a ‘tough’ code of conduct should be applied (in breach of which he presumably intends to get quite cross). Having been effectively compared to pay-day loans without the good PR, the practice is well on the way to being demonised. But if I may quote Rowan Atkinson, a question must be asked: The Devil – is he all bad?

So what are zero-hours contracts? As they are not regulated, there is no agreed definition or standard but the core is this: the employee is employed by the employer and will be paid for work done, but there is no guarantee of work, which is offered by the employer at will. Perhaps this would be found tolerable if that flexibility were consistent and equal, but often it is not. Some therefore identify the real issue as being the practice of requiring an employee to work ‘when required’ and of limiting other activities or work by insisting they remain available during ‘down’ times.

Certainly this is a core concern, but even without such requirements, many remain concerned about the ability of some groups (including those in areas of high unemployment and those in the ‘intern’ generation) to defy a call to arms and risk being taken off the list for future rounds of work. Together these factors have led to what Unite describes as a growing sub-class of employees earning an average of £500 a month.

Of course general employment laws will bite in such worker/employee relationships in the usual manner. These include the national minimum wage (believed also to be more likely the maximum in such relationships) and the requirements of the Equality Act in terms of how discretion is exercised in the offer of work (though in relation only to the core protected characteristics such as sex, race and age). In some cases the impact of more general law is more difficult to assess. For example, what about the right to return to work after maternity leave?

For employment lawyers the contracts even raise a core conundrum of whether the worst of such contracts can amount to an employment relationship at all, given that obligations to provide and perform work are thought implicit within such relationships (though are often expressly disapplied in given circumstances, such as ‘gardening leave’).

Yet abuses aside, there are circumstances in which such contracts may suit both parties, including where they are used only as supplemental contracts to provide for additional work after core hours have been concluded (where they are akin to overtime arrangements).

In short, it is a pithy issue of greater social concern even than academic interest. The conclusion the major parties seem to have reached is that an all-out ban is impractical and that focus should instead be placed on the conditions on offer and on regulating the impact of these arrangements. For Miliband, these include new rights arising after having worked regular hours (whatever they are) for a set period.

These include the right to request a fixed-hours contract after six months – and the automatic right to a fixed-hours contract after a year. The practical difficulties with such measures are obvious. The real key may be his suggested offer of protection from workers being forced to be available on demand and from exclusivity requirements which prevent them working for others in down time. Given such measures the situation could be fixed, but such an approach carries the risk that employers might instead abandon such contracts altogether – an issue for those for whom zero-hours contracts work well and who have nothing else on offer.

It is interesting in itself that Labour has made it clear that the policies will need to be UK-wide (they were announced in Scotland as part of the yes/no debate). The thinking is that, if the economies on either side of the possible new border try to offer a less regulated regime, it will create a ‘race to the bottom’. For in this there is an implicit recognition that part of the problem will always lie in the desperation of those workers who have no choices and who prefer something over nothing.

But is this a reason to leave things as they are? Many may feel that if such terms are the best on offer to them at the moment it is better than nothing and they will take their chances. Some will suggest that without such contracts opportunities will be lost. But we must remember these are the same arguments employment law has faced for generations. If maternity rights are offered, surely people will not want to employ women? The list goes on. But if there is to be law relating to fair employment at all then surely such risks will need to be taken.

Those unreconstructed souls who see such changes as the ‘thin end of the wedge’ will be interested in the recent suggestion of ‘issue creep’ within the gay community and its possible impact upon the Equality Act (and sexual orientation discrimination law).

I doubt I am the only one who has noticed a recent and increasing list of those who feel they might clothe themselves with the rainbow flag in contrast with those who are ‘straight’. Certainly, there was a time when some in the lesbian and gay communities arched an eyebrow at the admission of the bisexual community into the village.

Next it was the turn of transgender people. It is noticeable now that ‘LBGT’ has in some circles developed into ‘LGBTQiAPK’. This apparently adds to the list those who ‘question’ their sexuality as well as those of ‘A-sexual’, ‘Pan-sexual’ and ‘Kinky’ persuasions.

It is unclear whether there is any real prospect of the more limited definition of sexual orientation in the Equality Act being expanded any time soon (in effect it covers only gay men, lesbians, bisexuals and heterosexuals). But it has left some wondering if anyone is actually now excluded from the list, and how it would ‘work’ legally were expanding the definition to be seriously considered. It will certainly be interesting to learn how they define the ‘K’.

This article, written by Darren Clayton, was originally published in the Law Society Gazette at http://www.lawgazette.co.uk/law/legal-updates/working-when-required/5041174.article