There has been much media coverage over the past few months about zero hours contracts. Love them or hate them, they can be very valuable in many industries to flex up and down to demand. The problem with them is that, like most good ideas, they are often misused. Employers often use a zero hour contract to try and escape liability but a recent case is yet another example of it is more about reality than the label.
In the EAT case of Borrer v Cardinal Security Ltd, the employee was said to be on a zero hours contract. He had been employed for over 4 years and in practice whilst his contract did not guarantee him any working hours it was said to be specified by his line manager. He would ring or text each week to see what his hours would be the next week.
Over time it became a pattern that in reality he worked 48 hours a week. He was transferred to another site but this did not work out and subsequently he was offered another location but for just 2/3 days a week. He resigned and claimed constructive dismissal. The ET rejected this and he appealed to the EAT. The EAT held that on the facts found by the Tribunal, the claimant had a contractual entitlement to work 48 hours a week so when these were unilaterally cut this amounted to a breach entitling him to resign.
The case was remitted back to the ET to consider the level of compensation. So in this case, it was not a case of the contract being what it said on the tin. This is a lesson for employers that if they wish to use zero hours contracts this does not necessarily give them the protection they desire. If the contractual reality morphs into something else, it is that that will determine the contract. Of course, if the zero hours contract is being used as it was designed (i.e. to genuinely flex up and down) there should be no danger of this as the reality will be that it does vary week to week and forms no pattern.