Employer obligations to zero-hour workers

The importance of ensuring consistent treatment of employees on different types of contracts has recently been reinforced by the Employment Appeal Tribunal (EAT). Victoria Albon of Dentons looks at what this means for employers in the retail sector

By Victoria Albon (Victoria Albon is an associate in the employment team of law firm Dentons)

What are zero-hour contracts?

A zero-hours contract is a contract between a business and a casual worker, where the business does not guarantee a particular number of hours work.  As hours are not guaranteed, staff employed or engaged on a genuine zero-hours contract will almost always work part-time.

What protection do part-time workers have from less favourable treatment?

The Part-Time Workers (Prevention of Less Favourable Treatment) Regulations allow part-time workers to challenge less favourable treatment to which they are subjected on the ground of their part-time status. This might include, for example, providing certain benefits to full-time staff but not to staff working part-time.

To establish this, the part-time worker will need to identify an appropriate full-time worker as a comparator. It is open to the business to establish that any less favourable treatment is justified on objective grounds.

Who might an appropriate comparator be?

The Regulations state that the comparator must be employed or engaged by the same company under the same type of contract and engaged in the same or broadly similar work as the part-time worker. 

It’s important to keep in mind, where relevant, whether the comparator has a similar level of qualifications, skills and experience as the part-time worker.  Where possible, the comparator and the part-time worker should be based at the same establishment.  The part-time worker must be able to identify an actual comparator.  Unlike in discrimination claims, a hypothetical comparator will not do. 

What did the EAT say in the Roddis case?

In Roddis the claimant, a part-time associate lecturer employed on a zero-hours contract, sought to compare himself to a colleague who was also an associate lecturer but employed on a full-time permanent contract. 

The Employment Tribunal dismissed the claimant’s claim under the Regulations on the basis that Mr Roddis’s zero-hours contract was not of the same type as his chosen comparator.

On appeal, the EAT found that Mr Roddis’s zero-hours contract was not of a different type.  The EAT said that, as an employee on a zero-hours contract will rarely (and, by very definition, should not) work full-time, a zero-hours contract does not constitute its own type of contract for the purpose of the Regulations. 

The EAT said that if it did, an employee on a zero-hours contract will never be able to compare themselves to a full-time employee and so would be unable to seek protection under the Regulations. 

It was sufficient that Mr Roddis and his comparator were both employed under contracts of employment as associate lecturers at the same establishment.

What does this mean for employers in the retail sector?

Zero-hours contracts can be a useful tool for businesses in the retail sector where the need for staff is variable, depending on factors such as the season and economic conditions. 

It can be tempting to forget that, aside from the requirement to provide work, a business will have the same obligations to zero-hours workers as to its full-time staff.  This case is a reminder that employees and workers on zero-hours contracts should not generally be treated less favourably than their full-time equivalents.  Employers should be prepared to objectively justify any less favourable treatment.

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