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Zero Hours Contracts - Legal Protections Are Not All One Way!

The debate about zero hours contracts has very much focused on the perceived lack of protection they provide to workers. However, as a case concerning a student who worked part time in a restaurant shows, they do not necessarily work in the employer's favour either (Rice Shack Limited v Obi).

The student was working as a front of house assistant at a restaurant in Manchester to support her studies. She earned an average of £102.50 a week under a zero hours contract until she was suspended in March 2016 following an altercation at work. The restaurant allowed matters to drift and her suspension continued until December without any disciplinary hearing being arranged. Throughout that period, she was not offered any shifts and was not paid.

In August, she had found alternative work in a call centre, but had not informed the restaurant of that. When it subsequently contacted her to offer her further work, she replied that she was willing to return providing she was paid outstanding sums that were due to her for the past nine months.

Meanwhile, she had brought an Employment Tribunal (ET) claim under Section 13 of the Employment Rights Act 1996 (ERA) that unauthorised deductions had been made from her wages. The ET found that she had been entitled to receive her average weekly pay throughout the entirety of her period of suspension. There was nothing in her contract with the restaurant expressly giving it the power to suspend her and it was accepted before the ET that if it did, there was no basis for it to do so without pay unless there was an express contractual provision to that effect, which there was not.

The restaurant appealed against the ET's ruling, however, contending that once the student had obtained work with another employer, there were no sums 'properly payable' to her for the purposes of Section 13(3) of the ERA. Alternatively, her failure to disclose her other employment meant she should not have been entitled to wages from the restaurant once she commenced that work.

In rejecting the restaurant's challenge, the Employment Appeal Tribunal noted that the problem was entirely of its own making. It had chosen to enter into a zero hours contract with the student, so there was no obligation on her not to accept other work or to tell the restaurant if she did so.

Although the flexibility offered by the zero hours contract was no doubt beneficial to both sides, from the student's perspective it meant that she was entitled to take on other commitments and, at her convenience, to accept or decline any shifts offered by the restaurant. It was the latter's decision to suspend her and to continue her disciplinary suspension, without resolution, for an extended period.

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