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Tackling avoidance on the proposed ban of exclusivity clauses in zero hours contracts

The Government has published its response to the consultation on how to prevent employers getting round the ban on exclusivity clauses in zero hours contracts as set out in S.153 of the Small Business, Enterprise and Employment Bill which is currently in the final stages of its passage through Parliament.

S.153 provides that any provision of a zero hours contract is unenforceable against a worker if it prohibits the worker from doing work or performing services under another contract or under any other arrangement, or doing so without the employer’s consent The response contains Draft Regulations to tackle avoidance of the exclusivity ban to be considered during the Parliamentary scrutiny and are based on the following principles:

– Introducing protection not just for those working under zero hours contracts, but also those working under a ‘prescribed contract’.

– A ‘prescribed contract’ is one which entitles the worker to be paid no more than the agreed number of hours per week multiplied by the adult NMW hourly rate, in relation to the work the employer undertakes to offer the worker i.e. the prohibition will extend to all contracts under which the individual is not guaranteed a certain level of weekly income.

– The Regulations do not apply to a prescribed contract under which the rate of pay is at least £20 per hour for each hour worked, i.e. in such circumstances exclusivity clauses can be enforced.

– An employer must not subject a worker working under a zero hours contract or a prescribed contract to any detriment on the grounds that the worker did work or performed services under another contract or under any other arrangement.

– A worker will be able to make a complaint to a tribunal if they consider they have suffered a detriment and if the complaint is upheld the tribunal may order compensation that it considers just and equitable. 

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The aim is to provide summary information and comment on the subject areas covered. In particular, where employment tribunal and appellate court cases are reported, the information does not set out full details of all the facts, the legal arguments presented by the parties and the judgments made in every aspect of the case. Click on the links provided to access full details. If no link is provided contact us for further information. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.

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