Given the polarising views on zero hours contracts there are likely to be conflicting views about whether the recent Employment Appeal Tribunal (“EAT”) Judgment in Mr A Agbeze v Barnet, Enfield and Haringey Mental Health NHS Trust is a positive or negative thing. For many businesses, zero hours contracts enable them to flex the number of hours worked (or workers needed) to meet business demand, and provide a good framework for casual workers who want or need significant flexibility in the way they work. However, the potential for employers to exploit their use is where the practice gains many detractors and frequently much negative comment.
When someone engaged on a zero hours contract is working they should be paid. No discussion needed. However, what about the grey areas when they are not working, for example when they are suspended pending an allegation of misconduct? According to the EAT zero hours workers are not entitled to be paid in such circumstances – finding against Mr Agbeze (a zero hours bank worker) who was suspended pending an investigation into an allegation of misconduct and who claimed that the failure to pay him was an unlawful deduction of wages.
Mr Agbeze alleged that it was an implied term of his zero hours contract that he should be paid an average wage during any period of suspension. His case centring on the premise that if the Respondent had work available for him to do but he was unable to do it because of his suspension he should still be paid. When the Employment Tribunal found against him at first instance and dismissed his claim Mr Agbeze appealed. In finding against him again the EAT referred, in particular, to two key points in the contract between the parties:
- Mr Agbeze was to be remunerated for the duties he carried out whilst performing the services he was contracted to perform; and
- critically, there was no obligation on the Respondent to provide work nor any obligation on Mr Agbeze to accept work offered.
The EAT took the view that because the provisions of the contract made it clear that Mr Agbeze had no right to pay unless he performed work it was not material that the contract did not expressly refer to any period of suspension as being unpaid.
Eagle eyed readers will note Mr Agbeze was an NHS bank worker rather than a zero hours contract employee. However, the principles are likely to apply equally to those on zero hours employment contracts.
By way of reminder, Maria Krishnan will be hosting a webinar on agile working on 12 October – definitely one to attend in the current working climate. Please click here to register.
The content of this talk is for information purposes only. All circumstances are unique and the information and opinions given do not constitute legal advice and should not be regarded as a substitute for legal advice. No liability is accepted for the opinions contained or for any errors or omissions.