partner laid off from zero hours contract, any rights?
Comments
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would section 89 of the ERA1996 not apply...
89 Employments without normal working hours.(1)If an employee does not have normal working hours under the contract of employment in force in the period of notice, the employer is liable to pay the employee for each week of the period of notice a sum not less than a week’s pay.
(2)The employer’s liability under this section is conditional on the employee being ready and willing to do work of a reasonable nature and amount to earn a week’s pay.
(3)Subsection (2) does not apply—
(a)in respect of any period during which the employee is incapable of work because of sickness or injury,
(b)in respect of any period during which the employee is absent from work wholly or partly because of pregnancy or childbirth [F7or on [F8adoption leave, parental leave or [F9ordinary or additional paternity leave]]], or
(c)in respect of any period during which the employee is absent from work in accordance with the terms of his employment relating to holidays.
(4)Any payment made to an employee by his employer in respect of a period within subsection (3) (whether by way of sick pay, statutory sick pay, maternity pay, statutory maternity pay, [F10paternity pay, [F11ordinary statutory paternity pay, additional statutory paternity pay] , adoption pay, statutory adoption pay,] holiday pay or otherwise) shall be taken into account for the purposes of this section as if it were remuneration paid by the employer in respect of that period.
(5)Where notice was given by the employee, the employer’s liability under this section does not arise unless and until the employee leaves the service of the employer in pursuance of the notice.
Since a zero hours contract is employment without regular working hours? It is work, not employment
As much as holiday entitlement is calculated, by taking a "weeks pay" caluculation for a worker with no regular hours.
Since it based upon the previous 12 weeks, the employee would have to not of worked for the previous 12 weeks to be due no notice pay?
If this interpretation incorrect, then why is this incorrect?
Because workers on zero hours contracts are not employees as I have already said. This section applies to variable hours contracts. A worker on a zero hours contract does not have a contract of employment, they have a contract for service, in which the employer is not obliged to offer work and they are not obliged to take it.0 -
No - it doesn't. See my answer below.Because workers on zero hours contracts are not employees as I have already said. This section applies to variable hours contracts. A worker on a zero hours contract does not have a contract of employment, they have a contract for service, in which the employer is not obliged to offer work and they are not obliged to take it.
So whats the legislation that entitles workers on zero hours contracts to holiday pay then? it can't be anything in the ERA1996 since they are not an employee.0 -
So whats the legislation that entitles workers on zero hours contracts to holiday pay then? it can't be anything in the ERA1996 since they are not an employee.
Working Time Directive(s) - these apply to all workers. And it doesn't entitle them to holiday pay. They are entiitled to paid holidays, which is an entirely different thing.0 -
Working Time Directive(s) - these apply to all workers. And it doesn't entitle them to holiday pay. They are entiitled to paid holidays, which is an entirely different thing.
I see, so they just refer to the ERA 1996 just for bits like the weeks pay definition.
That aside however, since the person made redundant on this zero hours contract was working for the employer for a continous 5 years, should they not be trying to claim that the worker would be considered as an employee by HMRC?0 -
You are probably best speaking to the CAB as you are getting conflicting information on here. I would say you have employment rights after being with the same employer for more than a year and I would say employees on zero hours contracts are employees. However, the pay for the period in which notice is given wouldn't be anything anyway as there is no work and as there is no work there is no pay but you would still have a notice period and could still claim statutory sick pay during the notice period. http://www.adviceguide.org.uk/england/work_e/work_rights_at_work_e/contracts_of_employment.htm#contracts_without_specific_working_hoursI see, so they just refer to the ERA 1996 just for bits like the weeks pay definition.
That aside however, since the person made redundant on this zero hours contract was working for the employer for a continous 5 years, should they not be trying to claim that the worker would be considered as an employee by HMRC?:footie:
Regular savers earn 6% interest (HSBC, First Direct, M&S) Loans cost 2.9% per year (Nationwide) = FREE money. 0 -
Can I just add that your OH should check his written contract very carefully, as employers often refer to contracts as 'zero hours' contracts, when they should more properly be referred to a 'flexible hours' contracts.
A zero hours contract should clearly state that the employer is under no obligation to offer work, and that the worker is under no obligation to accept work if it is offered.
But many supposedly 'zero hours' contracts state that there is no guarantee of work, but then go on to say things like the employee is required to be flexible and to work unsociable hours if the needs of the business dictates. They will have absence and disciplinary procedures and the workers will be paid through the payroll with tax and NI being deducted in the normal way. Often tools will be provided. These sorts of contracts are quite common with driving jobs where the worker will often be based at home and be provided with a company van, mobile phone and uniform.
In that situation, the contract is not a Zero Hours contract in the proper sense of the term, and the worker is an employee with all the normal rights and protections.I'm a retired employment solicitor. Hopefully some of my comments might be useful, but they are only my opinion and not intended as legal advice.0 -
You are probably best speaking to the CAB as you are getting conflicting information on here. I would say you have employment rights after being with the same employer for more than a year and I would say employees on zero hours contracts are employees. However, the pay for the period in which notice is given wouldn't be anything anyway as there is no work and as there is no work there is no pay but you would still have a notice period and could still claim statutory sick pay during the notice period. http://www.adviceguide.org.uk/england/work_e/work_rights_at_work_e/contracts_of_employment.htm#contracts_without_specific_working_hours
But its one or the other, not both... if its flexible working hours the ERA1996 applies... notice periods for contracts of varying hours are calculated on a "weeks pay", claiming there is no work does not wash, unless the worker remains employed, but just not offered any work.
Even if the contract clearly states its a zero hours contract, the period of employment and the terms would make it an employee/empliyer relationship - simply because I can't see how HMRC could rule any other way.0 -
However, the pay for the period in which notice is given wouldn't be anything anyway as there is no work and as there is no work there is no pay but you would still have a notice period and could still claim statutory sick pay during the notice period. http://www.adviceguide.org.uk/england/work_e/work_rights_at_work_e/contracts_of_employment.htm#contracts_without_specific_working_hours
I agree, OP should get advice from an adviser who can see the contract and obtain all the facts, as that is the only way to properly ascertain the employee status.
However, I disagree with what Happy says about notice pay.
IF this is a contact of employment - and it may be, depending on the facts - then if there is no work during the notice period, or if the person is dismissed without notice, the correct way to calculate notice pay is to take the last 12 weeks immediately prior the the notice period and average the earnings. (ignoring any weeks where the worker was off sick or was not offered any work).
There is also a little known rule that a person on sick leave is entitled to be restored to full pay during the notice period PROVIDED the notice period is no more than statutory notice. This applies to all employees. So, for example, an employee who has been there 3 years and is entitled only to statutory notice would qualify for this protection, whereas an employee who has worked there for three years, but has a one month notice clause in the contract would not (sometimes truth is stranger than fiction!)I'm a retired employment solicitor. Hopefully some of my comments might be useful, but they are only my opinion and not intended as legal advice.0 -
Just to clarify - HMRC do not and have never ruled on employment status. That is the jurisdiction of an employment tribunal, not HMRC. It is perfectly possible for HMRC and a tribunal to come to opposite conclusions on matters - the only one that matters in legal terms is the conclusion drawn by a tribunal. Otherwise I would agree with zzzLazyDaisy that the only way to accurately assess whether the employer has strayed beyond the terms of a zero hours contract is to (a) get legal advice and (b) submit a tribunal claim to that effect. Until a tribunal says otherwise, it is what it is....
By the way Daisy - the OP isn't off sick, that was just another one of those diversions we went around!!!0 -
Just to clarify - HMRC do not and have never ruled on employment status. That is the jurisdiction of an employment tribunal, not HMRC. It is perfectly possible for HMRC and a tribunal to come to opposite conclusions on matters - the only one that matters in legal terms is the conclusion drawn by a tribunal. Otherwise I would agree with zzzLazyDaisy that the only way to accurately assess whether the employer has strayed beyond the terms of a zero hours contract is to (a) get legal advice and (b) submit a tribunal claim to that effect. Until a tribunal says otherwise, it is what it is....
By the way Daisy - the OP isn't off sick, that was just another one of those diversions we went around!!!
interesting, so when HMRC says my selfemployment contract should infact be employed and the employer should be paying PAYE tax and NI and I should recieve holiday entitlement, means absolutly nothing?0
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