A few days ago, a colleague tweeted that I had 'introduced' zero hours contracts into our organisation. This is not quite the full picture, so I responded rapidly to clarify insofar as 140 characters allows. I have also tweeted that very minimal hours contracts can be even worse as they combine total uncertainty (about the next shift of work) with mutuality of obligation. I suspect that, like zero hours contracts, these are also widely under reported.
This topic is now receiving lots of press coverage, and comment, so I have decided to throw my two penneth worth into the pot. So, can you have ethical zero hours contracts or does the road only go the way of the employer?
Having planned your workforce requirements, including need for occasional additional cover or the need for additional capacity at seasonal or busy times etc., I would advise that the bulk of the workforce should be employees on contracts with a set number of hours, whether permanent or for a fixed period. If there is a clear business need for casual or temporary staff, I think that the best starting point is to establish whether someone should be an employee or a worker. I have had reason during my career to lead a review of the contracts of 'sessional staff' and this was what we did.
ExpertHR explains the difference well:
"An employee is a person employed under a contract of employment. A worker who is not an employee is said to be engaged under a contract sui generis (of its own kind). There are two elements to a contract of employment: mutuality of obligation and control. Mutuality of obligation exists when an employer undertakes to provide a person with work and that person agrees to do that work in return for an agreed salary or wage, and on terms and conditions laid down by the employer. Control exists if the employer determines when, where and how the work is to be done (or the manner in which it is to be done). It follows that temporary workers are not employees if they are free, without penalty, to accept or reject any offer of employment made to them. Although the control element undoubtedly exists when a worker accepts an offer of casual work, the ability to reject such an offer at will, and without penalty, is what distinguishes such a worker from an employee."
Our conclusion was that we had a need for a small number of zero hours contracts in certain parts of the service for genuine sessional workers or relief coverage, but not for routine work or regularly rostered work. These workers might also be known traditionally as sessionals, casual staff, bank staff, or relief workers. In other words, it should be clear to local managers who request their work and to them, that they are truly casual. This also means no mutuality of obligation on either side, so they are free to work elsewhere and to turn down work offered (the road goes both ways). We also pay these workers benefits such as holiday and sickness pay accrued pro rata according to the hours they have worked. This exercise did lead to some contract revisions for staff who were classed as sessional, but had started to be offered routinely the same pattern of work over a period of time. (My advice, if that happens, is to offer the worker involved an employment contract with set hours for the period of time over which that regular work is expected to take place. The contract can always be reviewed regularly and flexed accordingly.)
A practice I alluded to above, (which we don't do) is very minimal hours contracts that require mutuality of obligation, but where this requirement is only advantageous to the employer. In other words, a one way street to total flexibility for employers but total uncertainty for staff. In my view these are legal, but only just. A young person I know has one of these (even my teenage children's friends sometimes ask @familyhrguru for advice or views on employment matters.) He is required to work any 16 hours a month. He has, like dockers in the bad old times, turned up for shifts to be told he is not required. He has ventured to try to turn down shifts well over an hours drive away (he has an old car) and been told he will be disciplined if he does not turn up. He has also had weeks with hardly any work, then others with several 12 hour shifts. A psychological contract and employee wellbeing are just a distant dream in such circumstances... I wonder how many other entry level jobs are similar? I wonder how many other outsourcing companies use such contracts? I don't like what I hear and I worry that it is becoming more prevalent in this economy and hitting young people and those without many academic qualifications the hardest.
This blog has probably only touched the surface I think, of a topic on which there will be lots of strong views. To conclude, in my view, no employee should be stuck on a one way street on a zero hour or minimum hour contract, contractually unable to turn down shifts, yet able to be turned away from shifts. A small number of zero hours contracts, organised ethically, can be acceptable and useful to the business for a small number of workers who genuinely do casual shifts or occasional work and who can decline work offered.
Traditionally a zero hours contract - though not so named would have attracted a retainer fee for guaranteeing availability - sometimes called an 'on call' contract.
ReplyDeleteSuch arrangements were common in probation when I worked in a rural area and probation staff might be needed to work, say at an occasional court, (called unexpectedly as a consequence of arrested people needing to be put before a court) before the next sitting date.
The deal was for the weekend and bank holiday court cover I did up to the late 80s (I left & went work in a metropolitan area where courts always sat on Saturdays and Bank Holidays [Sundays excepting])- was that if one was called in - expenses were paid for travel - it was in addition to regular work commitment and one then negotiated an equivalent leave time with one's supervisor.
Seemed pretty fair to me - though getting the time of in lieu could be awkward to arrange.
I realise I am mixing extra work to that already contracted as well as temporary work. I don't recall folk being paid a retainer for simply being on call, in probation, but expect it happens in some places and circumstances.