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There are bigger employment issues than zero-hours contracts

Demand for flexible work patterns, potential loopholes, and problems with defining 'regular contract' means Labour's proposals face considerable challenges

2 April 2015

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Despite promises from Ed Miliband that a future Labour government will end the 'epidemic' of zero-hours contracts that are 'undermining family life', one employment specialist has argued that this may be easier said than done.

The Labour leader has declared that his government would pass a law that will give employees the right to a regular contract after 12 weeks of working regular hours.

However, Colin Leckey, a partner in the employment team at Lewis Silkin, said zero-hours contracts were nothing new, but was unsurprised that the publicity the issue has garnered over the last five years had made it an inevitable feature of the election campaign.

Leckey added that while Miliband and Labour have promised to tackle job insecurity, there are two other important employment issues worthy of headline debate.

These are the two-year extension of the qualifying period for unfair dismissal claims and the introduction of Employment Tribunal fees, which has led to a significant fall in the number of discrimination claims being pursued.

Job security

'Thus far, there has been no suggestion from Labour that a worker who has exercised their right to a "regular contract" could not still be dismissed on just one week's notice during their first two years of service, with essentially no legal recourse. Arguably, this has a much greater impact on job security than contractual status,' said Leckey.

Labour remains unclear as to what 'regular contract' actually means, although the assumption is that there will be certain pay in return for certain hours.

'This ambiguity raises a number of unanswered questions and difficulties,' remarked Leckey. 'First, how much pay - and how many hours - will an employer be required to promise? The outgoing government has struggled with this issue in its own consultation on zero-hours contracts.

'It is generally recognised that promising a single hour of work and a single hour of pay as a way of getting around zero-hours legislation would be abusive, but where is the line drawn, and by who?'

In addition, Leckey highlighted the continuing trend of moving away from the traditional '9 to 5' working arrangements. Any new legislation might inhibit workplace flexibility.

'While this varies from industry to industry, increasing numbers of employers view the notion of core hours as archaic, taking the view that as long as the job gets done they don't mind when or from where the employee does it,' he said.

Avoiding protections

In conclusion, Leckey argued that it remains unclear whether a future Labour government could stop employers from changing their employment arrangements to avoid new protections.

'It is likely that Labour has modelled its proposals on the Agency Workers Regulations, where agency workers acquire a raft of rights once they have completed 12 weeks of service for an end user.

'However, it was widely observed at the time that those regulations prompted a shift towards reduced-term engagements for agency workers. If the same happened here, it could have the unintended consequence of lower-paid, zero-hours contractors becoming more vulnerable, with employers increasingly disinclined to offer them longer-term contracts,' explained Leckey.

John van der Luit-Drummond is deputy editor for Solicitors Journal | @JvdLD

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