Zero hour suspension pay

[Pompeydoug]

We have an employee with less than 6 months service as a zero hour worker. They have worked on average 37.5hrs per week, but in several different services and locations, covering absence, annual leave and unexpected situations, they choose to move around the services by choice, enjoying the flexibility. We had a report of serious misconduct and have suspended them without pay. They state they are entitled to be suspended on average pay as they have worked regular hours. I do not believe we should pay them as it might imply we agree a substantive relationship exists. They have chosen where and when to work (we have offered several locations each week) they choose those closest to home. Any thoughts?

[Mr $quanda£ot]

Re: Zero hour suspension pay

I think you are on the wrong site as most of us condemn zero hour contracts. They maybe legal but I for one would never ever accept one with restrictions to work elsewhere.

To answer your question, in most circumstances you would need to follow a disciplinary process. I think your employee may well be right, saying that the average hours pay would be payable. You should seek advice from a specialist lawyer.

[vanman]

Re: Zero hour suspension pay

What is a week’s pay when you are not entitled to pay?

http://www.ashbycohen.co.uk/blog/wee...-entitled-pay/

The traditional arrangement of an employee working a set number of hours for a set wage is breaking down.
The Unite union estimates that up to 5.5 million people are on zero-hour contracts where no particular number of hours of work is specified.

There is also a debate as to whether someone on a zero-hour contract is an employee (with all the rights of an employee) or a worker (with more limited rights). The debate centres on whether an individual is required to work when offered hours, or is free to turn it down.

If required to accept the work, then the zero-hour contract is a contract of employment.
A case in the Employment Appeal Tribunal*, involving a hairdressing salon, has confirmed the calculation of a week’s pay for working out the unfair dismissal basic award – a calculation which would be relevant in an unfair dismissal claim brought by an employee on a zero-hours contract.

The facts were that the employee had sold her hairdressing company, which held a franchise. It was a term of the sale agreement that the employee would be employed in the business as a hair stylist, but her earnings were to be on a commission only basis.

Eventually, the employee was dismissed and brought a claim for unfair dismissal. She won her claim.
In calculating the basic award, the Employment Judge took into account that, in the period leading up to her dismissal, the employee had been suspended twice, during which her name had been blackened, thereby losing goodwill with her own clients and those she had had diverted from her.

As a result, he calculated the basic award by reference to a higher weekly wage than that which she had in fact earned in the 12 weeks prior to her dismissal. The employer appealed against this calculation to the Employment Appeal Tribunal.
The Employment Rights Act 1996 contains detailed rules for the calculation of a week’s pay for the purposes of the unfair dismissal basic award. What these rules boil down to is that an employee’s actual earnings during the 12-week period prior to termination are ascertained and averaged out. That gives a week’s pay for the purposes of the basic award. No variation from that formula is permitted.

The Employment Appeal Tribunal ruled that the speculative figure adopted by the Employment Judge, based on the employee’s suspension, blackening of her name and diversion of work, was impermissible.

However, for the purposes of calculating the unfair dismissal compensatory award, which is to be calculated on a just and equitable basis having regard to the loss suffered by the employee, the Employment Judge was entitled to compensate the employee for her lost earnings post dismissal on the basis of what she would have earned but for her unfair dismissal.


Employments with no normal working hours.

http://www.legislation.gov.uk/ukpga/...-working-hours

(1)This section applies where there are no normal working hours for the employee when employed under the contract of employment in force on the calculation date.

(2)The amount of a week’s pay is the amount of the employee’s average weekly remuneration in the period of twelve weeks ending—

(a)where the calculation date is the last day of a week, with that week, and

(b)otherwise, with the last complete week before the calculation date.

(3)In arriving at the average weekly remuneration no account shall be taken of a week in which no remuneration was payable by the employer to the employee and remuneration in earlier weeks shall be brought in so as to bring up to twelve the number of weeks of which account is taken.

(4)This section is subject to sections 227 and 228.

[Pompeydoug]

Re: Zero hour suspension pay

Thanks Vanman,

Our contract does not have exclusivity clause, nor is the worker 'required' to work when offered, they are regularly offered a single place of work, but they choose to work in several services. We also have a mechanism to transfer a zero hour position to a permanent position should the worker choose, after a period of time with the organisation. This worker has chosen not to.

The legislation appears to be related to calculating average pay for wrongful dismissal, whereas our worker might not be dismissed and it would more probably be an argument for unlawful deduction of wages.