12 May 2015

Has the worm turned? Zero hours workers bite back

This article was written by Carl Richards (partner), Hilary O'Connor (partner), and Tamsin Rickard (professional support lawyer).

Zero hours workers received considerable attention in the recent general election campaign, although it remains to be seen how effective the new legislation will be in protecting their rights

However, a recent tribunal decision suggests that zero hours status could provide new and unexpected ammunition in a worker’s claim.

In the case of Southern v Britannia Hotels, the Claimant was a waitress in her 20’s who was subjected to sexual harassment by her manager, including sexual touching and comments. When she complained, no effective action was taken: the Tribunal described the employer’s investigation as “perfunctory”. A subsequent investigation took place, but this was also flawed, failing to take into account the evidence collated previously. The Respondents contended that the conduct complained of was not unwanted as the claimant didn‘t appear to object to it.

The Tribunal took a different view. They considered that, given that the claimant was a zero-hours worker who felt she was dependent on her manager’s goodwill to be offered work, she may not have felt able to object openly to his unwelcome behaviour. They found it was in fact unwelcome, and constituted harassment.

The resulting £19,500 injury to feelings award took into account the vulnerability of this claimant, of which her zero hours status appears to have been one aspect.

What does this mean for employers?

This is a useful reminder that zero-hours workers, whilst they do not have full employment rights, are subject to the protection of discrimination legislation with the potential for higher value claims. Had this claimant in fact been deprived of shifts (we do not know if this was the case) and could convince the Tribunal this was because she had complained of harassment, this could have resulted in a claim for victimisation, even though as a zero hours worker she had no contractual right to be offered any shifts. 

The regulation of zero hours contracts is a new and developing area but employers mustn’t forget that the more longstanding raft of discrimination rights may be just as important - and potentially costly – and that zero hours status may even bolster their claims.

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