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On a zero hours contract and told boss are unavailable, is this a problem?

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  • In order to claim JSA, you must be available for work and actively seeking work.

    It sounds like you are committing benefit fraud.
  • Masomnia
    Masomnia Posts: 19,506 Forumite
    Part of the Furniture 10,000 Posts Name Dropper
    I would say that unfair dismissal in a case like this is unlikely but not impossible.

    Aside from the exclusivity clause, you'd have to show a tribunal that your employer was not treating it as a casual arrangement and that therefore you should be considered an 'employee' in law. I imagine that this is what your lawyer is getting at when s/he states that you should not be turning down work, as it will difficult to argue that it is not a casual arrangement when you yourself are treating it as such.
    “I could see that, if not actually disgruntled, he was far from being gruntled.” - P.G. Wodehouse
  • sangie595
    sangie595 Posts: 6,092 Forumite
    Masomnia wrote: »
    I would say that unfair dismissal in a case like this is unlikely but not impossible.

    Aside from the exclusivity clause, you'd have to show a tribunal that your employer was not treating it as a casual arrangement and that therefore you should be considered an 'employee' in law. I imagine that this is what your lawyer is getting at when s/he states that you should not be turning down work, as it will difficult to argue that it is not a casual arrangement when you yourself are treating it as such.
    The OP has already said that they have had almost no works for years. How is anyone going to turn that into something other than a worker status? "Scraps of hours" (the OPs words) do not constitute anything more than casual work.

    And so far the OP has not demonstrated that there is an exclusivity clause.
  • Spendless
    Spendless Posts: 24,670 Forumite
    Part of the Furniture 10,000 Posts Name Dropper
    takman wrote: »
    Don't you understand they don't have to dismiss you they can just give you zero hours work every week from now on. You can't take them to court for giving you no work because it's in your contract that your guaranteed zero hours each week.

    So what will you and your lawyer do then ?
    Agreed. I had a zero hour contract (my employer called it a casual contract) until the end of last year. They started messing me about. In late December I found out from an ex colleague they were making changes that they'd barely told me about. On NYE when I went home, I sent an email giving all my unavailabilty dates knowing full well I was taking the pee, with what I said I wouldn't work, any school holidays, dates my husband was away, not after 4pm on a Friday so I could take DD to an after school club.

    I only heard from them again 12 weeks from that date, when they sent me a letter saying my role was no longer required due to structural changes. On NYE the last day I worked, I was 6 days short of working there 2 years.
  • Ok. I have to establish two things am I a worker or an employee. If I am an employee on zero hours then I have rights. (Spoke to ACCAS yesterday.) They also fire and re-hire everyone in the New Year and if it's more than ten days or more then it's up to a judge to decide if it's really continuous service. I have really worked there over 5 years. Where would I find if I am an employee or worker on my contract? What part?
  • I just briefly looked through my contract-


    it is worded as- Employee details


    Period of employment.


    Is this wording proof that I'm an employee and not a worker?


    I guess if I am it's then up to a judge to deem whether the two week gap between hiring and firing people working at my language school is classed as continuous employment. The company does this to everyone though so surely a judge would throw out the company's argument that it's not continuous. There are lots of people who have their contracts terminated on December 16th this year then started again in early January; people who have worked there 4 or 5 years.


    How about myself continuing to make myself unavailable though? I have done it now for 3 weeks, as soon as I get on the NEA Programme am planning to make myself available.


    My boss wants me in for a 'chat' about Performance next week, but not about my unavailability. Is the key to just not sign anything ?
  • Guest101
    Guest101 Posts: 15,764 Forumite
    How are you not understanding this - even if you are an employee (which you're not, but lets just hypothetically accept your argument) you are on a zero hours contract, just like you can refuse all work, they can refuse to give you work.
  • ohreally
    ohreally Posts: 7,525 Forumite
    1,000 Posts Combo Breaker
    cuboid wrote: »
    Ok. I have to establish two things am I a worker or an employee.

    Didn't your employment lawyer establish your employment status before giving you advice/ opinion?
    Don’t be a can’t, be a can.
  • cuboid wrote: »
    I just briefly looked through my contract-


    it is worded as- Employee details


    Period of employment.


    Is this wording proof that I'm an employee and not a worker?


    I guess if I am it's then up to a judge to deem whether the two week gap between hiring and firing people working at my language school is classed as continuous employment. The company does this to everyone though so surely a judge would throw out the company's argument that it's not continuous. There are lots of people who have their contracts terminated on December 16th this year then started again in early January; people who have worked there 4 or 5 years.


    How about myself continuing to make myself unavailable though? I have done it now for 3 weeks, as soon as I get on the NEA Programme am planning to make myself available.


    My boss wants me in for a 'chat' about Performance next week, but not about my unavailability. Is the key to just not sign anything ?

    Normally a gap of a week or more is sufficient for the employment not to be continuous.
  • Guest101 wrote: »
    How are you not understanding this - even if you are an employee (which you're not, but lets just hypothetically accept your argument) you are on a zero hours contract, just like you can refuse all work, they can refuse to give you work.

    Exactly.

    Debating the difference between worker and employee is totally irrelevant unless the extra "rights" are actually useful.

    OP, you need to address this point first. As Guest says, in your situation what tangible benefit would you get from establishing employee status?
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