As part of the squeeze on the use of zero hours contracts, new anti-avoidance regulations came into force on 11 January 2016 to provide protection for employees and workers operating under zero hour contracts.
Following on from the change last year that made exclusivity clauses unenforceable, employees on these contracts are protected if they are dismissed for the breach of an exclusivity clause, which seeks to prevent them from working for another employer. In addition, they will be protected from suffering a detriment if they work for a different employer in breach of an exclusivity clause. For example, a detriment might mean that they are offered fewer hours, or the most unsociable hours under the zero hours contracts.
What does this mean for employers?
These new regulations are unlikely to have a huge impact, given that the law on exclusivity clauses came in last year. However, there are steps that you can take that might assist.
First and foremost, check whether you really mean to have your employees on zero hours contracts. In our experience, what may have started out as a zero hours contract may have morphed over time into something more like a permanent contract. If that is the case, put a proper contract in place.
If you do make use of zero hours contracts, then remove your exclusivity clause. They are not enforceable now anyway and leaving them in will send the wrong message to your employees and give them cause to challenge a decision by you (e.g. to give them certain hours).
If you are looking at dismissing employees on zero hours contracts, be careful to have a clear reason for their dismissal that does not relate to their working for another employer. It’s the same message as for many other dismissals in employment law terms – have a paper trail in place that supports your decision to help you fend off any claims.