Zero hours worker permanent contract issue

[SHELLHUNTER]

Hi, I wonder if you can help. I have been employed for 18 years for an education provider on a zero hours contract as a worker not employee but considered a permanent member of staff with no fixed end date (up until 2016 we had contracts renewed each year). I am entitled to holiday and sick pay and I have worked the same days for most of those 18 years (breaking for summer and Easter as many educational staff do).

We (myself and 2 others) have been summoned to a meeting this week to discuss plans going forward. We suspect we are going to be 'let go'. I have been emailing HR for 3 months trying to get to the bottom of whether we'll be forced out through lack of available hours, or officially let go. My emails have not got us anywhere up until this point. The work is supporting people in education and to cut a long story short, of the use software has been encouraged to cut down on personnel so there is currently about 12 hours work available between the 3 of us which is untenable.

My issue is: does continuous service and mutual obligation come into this at all? as in we've worked the same days over many years? Would I be wise in asking them to put in writing why we are being let go so I can pursue this further if I'm in a position to do so? Many thanks to anyone with any input on this, it will be much appreciated

[ULA]

Yes make sure you do get everything in writing.

As far as I understand it mutuality of obligation is likely to be a key to help determine whether an individual engaged on a zero hours contract is an employee or a worker. Mutuality of obligation will exist where an employer is obliged to provide work and the individual is obliged to carry out the work that is offered. Therefore, if your employer required you to accept the work offered to you, it is possible that you might be classed as an employee. This would apply if the requirement to accept work is an express term of your contract of employment, or for that matter if it is custom and practise over a long period of time.

Therefore, if a worker (you) have accepted all work offered over a significant period of time, even where you are not contractually required to do so, there is a risk that an employment tribunal would find that mutuality of obligation exists and an employment relationship has been established. There is an employment case for this which you may want to research - Cornwall County Council v Prater. This would mean that the "worker" status, it was believed you had due to the zero hours nature of your contract, would actually be deemed to be an "employee" status and would acquire you the relevant employment rights.

[dslippy]

Cornwall County Council v Prater: CA 24 Feb 2006

The claimant worked for the local authority under a series of contracts. The employer denied that she had been continuously employed and there was no ‘irreducible minimum mutual obligation necessary to create a contract of service’. There were times when she had no work.
Held: Given the authorities there was ample reason to find a contract of employment. There was a sufficient mutuality of obligations.
Longmore LJ: There was a mutuality of obligation in each engagement namely that the County Council would pay Ms Prater for the work which she, in turn, agreed to do by way of giving tuition to the pupil for whom the Council wanted her to provide tuition. That to my mind is sufficient ‘mutuality of obligation’ to render the contract a contract of employment if other appropriate indications of such an employment contract are present.
Lord Justice Longmore
[2006] EWCA Civ 102, [2006] BLGR 479, [2006] 2 All ER 1013, [2006] IRLR 362, [2006] ICR 731
Bailii
Employment Rights Act 1996 230(1)
England and Wales
Citing:
Appeal from – Cornwall County Council v Prater EAT 8-Jun-2005
EAT Contract of Employment – In this case we have held that where a Claimant teacher has accepted a succession of short term special teaching assignments, in circumstances where the Respondent employer was not . .
Cited – Ford v Warwickshire County Council HL 1983
In deciding whether in the case of employment under a series of short contracts the intervals between the contracts amount to temporary cessation of work, one must look back from the date of termination of the employment over the whole period during . .
Cited – O’Kelly v Trusthouse Forte plc CA 1984
Workers claimed to be employees.
Held: They were not such. Their contract reserved the right to choose whether or not to work and for the employer not to give them work. The question of whether the facts which are found or admitted, fall one . .
Cited – Clark v Oxfordshire Health Authority CA 18-Dec-1997
A nurse was employed under a contract, under which there was no mutuality of obligation; she could refuse work and employer need offer none. This meant that there was no employment capable of allowing an unfair dismissal issue to arise.
Sir . .
Cited – Stevedoring and Haulage Services Limited v A M Fuller and others CA 9-May-2001
The claimants were stevedores whose contracts were intermittent. The employer denied that they were employees.
Held: There was no contract while the claimants were not at work. There was no overarching or global contract, and it was not . .
Cited – McMeechan v Secretary of State for Employment CA 11-Dec-1996
The respondent as a temporary worker was entitled to be treated as an employee of an agency within the contract governing the particular engagement where money was due when the agency went into liquidation. He was therefore able to claim against the . .

Cited by:
Applied – North Wales Probation Area v Edwards EAT 12-Dec-2007
EAT Contract of employment: Definition of employee
Whether claimant employed under a contract of employment – ‘sessional employment’ – succession of contracts
The claimant was placed on a list of . .
Cited – Uber Bv and Others v Aslam and Others SC 19-Feb-2021
Smartphone App Contractors were as Workers
The court was asked whether the employment tribunal was entitled to find that drivers whose work was arranged through Uber’s smartphone application work for Uber under workers’ contracts and so qualify for the national minimum wage, paid annual . .

[dslippy]

See
https://swarb.co.uk/cornwall-county-...a-24-feb-2006/

[SHELLHUNTER]

Thanks so much for replying, that's very useful information. I am hoping for a goodwill payment I must admit but have been subject to some poor treatment before from them involving a settlement over wrongful holiday pay and a subsequent nda we all had to sign. Do you know where I stand on the amount of years served and notice given? Is it 12 weeks? That would take us to October- how would that work if there's no work for us anyway? many thanks

[ULA]

If you can prove employee status and continuous employment, notice is a week per year of service up to a maximum of 12 weeks.

If there is no work, then they would have the option to pay you in lieu.