Within employment law, the ‘zero-hour contract’ is one that is discussed by many and understood by few. The term has found its way onto an interesting news feature on channel 4 and into the manifestos of several political parties. Zero-hour contracts have been condemned and equally championed, depending on who you are – but what do ‘zero hours’ mean and do zero-hour contracts have a place in the dental practice workplace?
The term ‘zero-hour contract’ is not defined in legislation, but the basis of a zero-hour contract relationship between parties is that an employer engages a worker and:
- The employer is not obliged to provide any minimum hours of work; and
- The worker is not obliged to accept any work offered.
It is doubtful there is a practice that could survive mainly, or wholly, under a model where its workforce is not obliged to accept work. A Friday afternoon of patient appointments in the book, without any nurses in the pool willing to accept the work, would be nothing short of disaster for a business built on goodwill and service levels.
Since 2010, much of the criticism of zero-hour contracts was centred around exclusivity clauses. While they often appear in most contracts of employment, exclusivity clauses in zero hour contracts prevented the worker from working for another employer. While these clauses in zero-hour contracts were blamed for influencing unemployment figures, the reality is that some workers have been left at home struggling more than they would be if they were unemployed because they have been waiting for a shift to become available, without being able to accept or look for work elsewhere.
This stemmed from a move towards a more flexible workforce and thus employers wishing to utilise its workers according to fluctuations in demand, rather than traditional, stable and secure work – backed up by well-established employment protection rights.
However, exclusivity clauses were banned through regulations in 2015 and this currently poses a potential issue for the employer. Firstly, the employer is faced with a worker who is not obliged to accept work – equally, they could be working for a competitor, or elsewhere in other employment, when you really need them to work. It begs the question, why would a busy dental practice owner wish to have a zero-hour contract worker when an agency worker could be engaged with where required?
The answer to this is that a zero-hour contracted worker can accomplish the same level of work as an agency worker, but without the employer having to pay a premium. In the case of a more remote location, it may also be more beneficial to engage a zero-hour contract worker locally, than to have an agency worker travelling considerable distances to come and work for you.
The status of a zero-hour contract could be caught by current employment status cases and the subsequent legislation which may follow to address the gig economy. However, in most cases – at least for now – a zero-hour contract worker is a ‘worker’ rather than an ‘employee’. The consequence of this being that they are entitled to
a.National Minimum Wage or National Living Wage
c.Statutory Sick Pay; and
d.Benefit of/subject to Working Time Regulations.
In other words, they look like an employee, sound like an employee, but without the mutual obligation of one party to offer work and on the other party to accept work.
It is plausible that the relationship between parties can develop, over time, into more standard, traditional employer-employee engagement. This would afford statutory employment protection to the worker – now employee – but equally if the relationship developed in this way, the failure to accept work would be a disciplinary matter under which the employee could be sanctioned.
There may be instances where a zero-hour contract worker picks up a pattern of invariavbly working the unpopular Friday afternoon shift and this continues to be the case for an extended period of time. That shift may be, for nstance, 2 to 3 hours in duration, but the individual would be building up continuous employment which, after two years, would gain them employment protection rights – including the right to claim unfair dismissal.
Where you have a zero-hour contract worker that has acquired employment rights, it is worth noting that their statutory redundancy pay would be based on their average weekly wage for the previous 12 weeks, and then subjected to the usual redundancy calculations
There appears to only be a small uptake in dental practices engaging zero-hour contract workers and for each business, care and consideration should be given as to whether the practice needs zero-hour contract workers – or if there could be a better solution. Where you do choose to engage zero-hour contract workers, it is paramount that their employment status is clear as part of a comprehensive contract. It is not enough to issue a standard contract of employment and insert contracted hours as ‘0’.