Santander’s way around zero hours contracts

As recent articles in the press have reported, Santander has introduced new contracts in an effort to circumvent the new rules limiting the use of zero hours contracts.

Zero-hour contracts have been much in the news recently. A relatively recent change in the law provides that exclusivity clauses in zero-hour contracts preventing workers from working for other employers are unenforceable.

In response, Santander has introduced new contracts whereby on-call customer service advisers (CSAs) are employed on one-hour contracts as cover for branch staff. CSAs are guaranteed one hour per month/12 hours per year to ensure that they receive the minimum training and updates required to do the job. Any additional hours offered vary according to branch requirements.

Santander are now in a position to say that they do not use any zero-hour contracts and that the one-hour contracts differed from zero-hour contracts insofar as they gave people full employment rights with no obligation to accept additional hours or exclusivity.

A defining aspect of many zero-hour contracts is the absence of mutuality of obligation. In other words, the employer is not obliged to provide work and the individual does not have to accept work. If this is the case, the individual may not be considered to be an ‘employee’ which means that they will not benefit from rights to holiday pay, unfair dismissal etc.

If the Santander one-hour contracts are not zero-hour contracts and provide full employment rights that begs the question of whether the individuals are employees or workers and the nature of those additional employment rights.

Some employment rights for employees accrue with continuous service (e.g. unfair dismissal rights after 2 years’ continuous service). Whether or not continuous service accrues will depend on the status of the contract between separate work assignments. If there is no contract between assignments then continuity and the related employment rights may not accrue.

The attraction of these types of contracts to both employers and individuals lies in the flexibility available to each party. The questions relating to employment status and employment rights may be answered, to some extent, by the contractual provisions between the parties. The devil will no doubt be in the detail.

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