Ask a lawyer and the answer is frustratingly likely to be a resounding ‘maybe’. No guaranteed hours is no guarantee of non-employee status. A well-drafted contract is a step in the right direction. But – and there is always a ‘but’ – it may not be enough to avoid the worker being an employee. It is the day-to-day reality of the working relationship that counts.
Rotas with the requirement to work regular, rostered hours is a leap towards employee status. Another step in that direction is where the workers must turn up in person. Add to that a strict regime of rules and regulations about the job and, voila – you may have created employees! Their prize? A raft of employment rights. The most valuable being protection from unfair dismissal.
But that’s not the end of the story… Two years’ continuous service is the final hurdle in a claim for unfair dismissal. Zero-hours contracts are peppered with down-time and gaps between work. Again, the day-to-day reality dictates whether those gaps can be jumped.
Each case will differ but the risk is greater with regular, routine rosters.
Even without employee status, workers on zero-hours contracts are entitled to national minimum wage and may qualify for holiday pay. Compensation for discrimination may also be claimed if they can show a comparable full-time employee enjoying better benefits and treatment.
My advice? Ask an expert to evaluate. Get a good written contract. Carefully plan and monitor the rotas.
Victoria Notman is an employment solicitor at Raworths in Harrogate.