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Flexible contracts: Staff mistreatment or employer negligence?

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Despite the unpopularity of some flexible contracts – such as zero-hours contracts – they can be mutually beneficial for both parties if managed in the right way.

Often, workers find it useful to be able to pick and choose shifts, while employers gain access to a network of “on-call” staff, but disagreements usually come down to a misunderstanding over contractual terms and lack of clear communication.

Following Sports Direct earlier in 2016, ASOS has been the latest retailer to face allegations of mistreating workers at one of its warehouses. The allegations suggest the online retailer may have been using “exploitative” flexible contracts, following claims that it has ended shifts without notice and inhibited workers from taking regular breaks. The business has since released a six-page statement refuting the allegations.

The increasingly diverse nature of terms of employment, from part-time and full-time to zero-hour and self-employed arrangements, may also be contributing to a lack of clarity about the rights and entitlement of individual workers. Failing to stay abreast of the various categories and terms of engagement can in some instances be a minefield for employers and they could face legal challenges from disgruntled individuals if they get it wrong.

To avoid any hassle from flexible contracts, employers must communicate clearly with their workers at the start and throughout their engagement to ensure they are fully aware of their obligations, while keeping accurate and up-to-date documentation for each worker.

In the case of zero-hour contracts, it’s in the interest of both parties to be clear at the outset about the nature of the work being carried out, specific terms and duration of the engagement. For example, it should be stipulated that if an individual is called in to work for an allocated period of time, but completes the work in fewer hours, they may be asked to go home early. The same principle would also apply to agency workers.

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The onus is on the employer to regularly assess the need and duration of their temporary workforce to ensure they are not at risk of unwittingly creating disputes around employment status. Many employers are unaware that subtle changes to work patterns could pose risks in some instances. For example, choosing to give work to a particular individual repeatedly because they are more reliable and willing to take more shifts can have significant implications to the individual’s rights to pay and employment protection.

Other issues around adequate rest breaks and ambitious pick rates could also be resolved with clear communication and understanding on both sides regardless of an individual’s employment status. Clearly, employers must maintain adequate health and safety standards and breaches of those standards should be dealt with either internally through grievance and other procedures or, in extreme cases, through the HSE.

In principle, there is nothing legally wrong in employers having the ability to call on and use temporary workers to deal with peaks in demand. In many sectors this is crucial to their success. What is important is how employers engage and communicate with those individuals. Too much regulation in this area is likely to erode an employer’s ability to deal with peaks in demand and create barriers for business.

Philip Pepper is an employment law partner at Shakespeare Martineau.

Image: Shutterstock

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