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My daughter works five days a week as a cleaner and has a one-year-old son. She has her son in childcare and I also care for him on set days so my daughter has set days off to match the days when there’s no childcare. She has worked there for 10 years on a zero hour contract,but she has always worked 40 hours per week. They agreed in the summer that she could have two set days off a week to match her childcare, but a new manager has now started and wants to change her days off at short notice. He is also making her stay behind after her contracted hours without pay. Surely he is breaking the law and, if so, what are her rights and who does she complain to?
I note from your question that your daughter has a ‘zero-hours’ contract with her employer. This is a contract for a casual worker where there is no guarantee that the employer will offer any work, but the worker is expected to accept any work offered. The intention is that the individual will be a worker, rather than an employee, of the business. Workers engaged on a zero hours contract are usually only paid for the hours that they work and are only obliged to work the hours agreed with the business. These contracts are used where an employer wants to engage the worker on an “ad hoc” basis and there is no guarantee of work from the employer, but the worker is expected to be available if work is offered. In light of this, if your daughter is genuinely engaged on a zero hours contract, she would not be obliged to stay behind and work unpaid. This will, however, be dependent on the terms of her contract and I would suggest that she checks her contract carefully.
Given that your daughter has worked for the same employer for 10 years and she has always worked 40 hours per week, it may be possible to argue that your daughter is an employee working under a contract of employment, rather than a worker working under a zero hours contract. Ultimately, the question of employment status is to be determined in accordance with a number of tests and the contractual documentation signed by the parties is only one indicator: an employment tribunal would look at the reality of the situation in order to determine employment status. When an employer has provided work on a regular basis over an extended period of time and the worker accepted it, then it would suggest that there is a degree of ‘mutuality of obligations’ between the parties in respect of providing and accepting work. This indicates employment status. I would strongly suggest that your daughter takes specific legal advice in relation to her employment status so that she has an accurate idea of her employment rights.
If your daughter is an employee or if she is ‘in employment’ for discrimination purposes, she may be able to claim that her employer’s policy of insisting that she stays behind is discriminatory on the grounds of sex, due to her childcare responsibilities. Any such claim must be submitted within three months of the discriminatory act (here, insisting that your daughter stays behind after work) and please note that she must go through the Acas pre-conciliation procedures before a tribunal will accept her claim. If your daughter is an employee she could also resign and claim that her employer’s insistence in this regard constitutes a fundamental breach of her contract of employment and that she has been constructively dismissed. Again any claim for constructive unfair dismissal must be submitted within three months, this time of her resignation, and your daughter must go through the Acas pre-conciliation procedures before a tribunal will accept her claim.
If your daughter feels unfairly treated by her employer or that they have indirectly discriminated against her then I would strongly recommend that she raise a written grievance in the first instance. If this does not resolve matters then she should take specific legal advice about the terms of her contract and potentially bringing claims in an employment tribunal.
Should you require any further clarification on the above points please do not hesitate to contact Tracey Guest on 0161 975 3823.
*Helen Frankland assisted in answering this question.