Zero Hour Contracts
Prohibition and Scope
So-called Zero hours contracts are prohibited unless
- they provide for work done in emergency circumstances
- they provide cover for short-term absences or
- the work is, of its nature, genuinely casual.
A zero-hours contract is one which requires the employee to make himself or herself available to an employer in a week
- for a certain number of hours (contracted hours, below)
- as and when the employer requires him or her to do
- or both for a certain number of hours as and otherwise as and where required.
It covers cases where an employee is either asked to be available for work without the guarantee of work or where an employee is informed that there will be work available on a specified day or days.
Limits to Prohibition
The prohibition does not apply to
- work done in emergency circumstances or
- short-term relief work to cover routine absences for the employer.
The prohibition does not apply to genuinely casual work. This may arise where the contract is on the above terms because of engagement for casual work in the past (prior to that week).
This is so whether or not the number of those occasions or the circumstances regarding the engagement of the employee were such as to give rise to a reasonable expectation that he or she would be required by the employer to do work for the employer in that week.
Right to Minimum Payment
The right to a minimum payment applies where the contract requires the employee to make himself available for a certain number of hours but where the employee is not required to work at least 25% of the contract hours in the week concerned.
The right to a minimum payment also applies if
- the employee is employed as and when required by the employer (whether or not with a guaranteed number of hours as well) and
- work of the type for which he is required to be available has been done for the employer in that week, but
- the employee has not worked at least 25% of the hours for which such work has been done (available hours).
The hours for which work of the type concerned above has been done in the week concerned means the number of hours of such work done in that week by another employee of the employer concerned or, in case that employer has required two or more employees to do such work for him or her in that week and the number of hours of such work done by each of them in that week is not identical, whichever number of hours of such work done by one of those employees in that week is the greatest.
Amount of Minimum Payment
A right to a minimum payment arises where the employee has not been required to work at least 25% of the contracted hours or available hours (as the case may be).
The employee is entitled, where he or she has not been required to work for the employer at all in that week, to be paid what he would have received had he worked, whichever is the lesser of 25% of the contracted or available hours and 15 hours.
Where the employee has been required to work in that week less than 25% of the contracted or available hours, and that is less than 15 hours, he or she is entitled to have his or her pay calculated on the basis of working 25% of the contracted or available hours and 15 hours, whichever is less.
The minimum payment is calculated on the basis of three times the national minimum wage or three times the minimum wage under a sectoral employment regulation order if it applies to that employment.
Exceptions
The right to a minimum payment does not apply if the employee was not required to work the hours
- where the employee was on “layoff” or “short time” that week under the redundancy legislation as defined or
- is due to exceptional circumstances of an emergency, including an accident or imminent risk of an accident, the consequences of which could not be avoided despite exercising due care or otherwise of unusual and unforeseeable circumstances beyond the employer’s control or
- if the employee concerned would not have been available due to illness or other reasons to work for the employer in that week, the said percentage of hours
If the employee is entitled to payment by reason of making himself available under his contract regardless of doing work, then those rights are not reduced by the statutory rights legislation.
The employee is not deemed to be making himself available to do work where he or she is on call to deal with emergencies or other events or occurrences that may or may not occur.
Banded Hours
An employee’s contract may not reflect the actual hours actually worked in practice. Where an employee’s contract of employment or statement of terms of employment does not reflect the number of hours worked per week by an employee over a reference period (last 12 months), the employee is entitled to be placed in a band of weekly working hours specified in the legislation (and provided with work and paid accordingly).
There are eight bands of weekly hours
- A; 3 to 6 hours
- B; 6 to 11 hours
- C; 11 hours to 16 hours
- D; 16 hours to 21 hours
- E; 21 hours to 26 hours
- F; 26 hours to 31 hours
- G; 31 hours to 36 hours
- H 36 hours plus
Placing in Band
The employee may request the employer to be placed on the applicable band. The employee must be placed on a band within four weeks from the request.
The band of weekly working hours on which the employee is to be placed is determined on the basis of the average number of hours worked by the employee during the reference period. The relevant reference period is the preceding 12 months. It is 12 months after the commencement of employment with the employer and immediately before the employee makes a request.
Once an employee is on a band, his or her employer must, for the following 12 months, provide the employee with working hours which, on average, fall within the band. An employee placed on a band of weekly working hours shall work hours, the average of which shall fall within that band for a period of not less than 12 months following that placement.
Exceptions
Nothing above requires an employer to offer hours of work in a week where the employee was not expected to work or requires an employer to offer hours of work in a week where the employer’s regular occupation, profession or trade is not being carried out.
An employer may refuse to place an employee within a band if
- there is no evidence to support the request
- there has been a significant adverse change to the business concerned during the reference period
- the average hours calculated during the reference period reflected a temporary situation which no longer exists
- the employer is unable to comply due to exceptional circumstances or an emergency which the employer could not have avoided the occurrence of unusual or foreseeable circumstances outside the employer’s control.
The provisions do not apply to banded arrangements, which are entered by agreement following collective bargaining.
Enforcement
An employee may complain to the Workplace Relations Commission when he is of the opinion that he has not been placed on a band or the correct band within four weeks of request or the employee has unreasonably refused a request to be placed on the band.
The complaint must be made within six months of the expiration of the four-week period. This may be extended up to 12 months where there is a reasonable explanation for the delay.
The WRC adjudication officer may require the employer to place the employee on the relevant band as the legislation requires. |The adjudication officer may not award compensation. Either party t may appeal a decision of an adjudication officer to the Labour Court.
No Penalisation
Penalisation for exercising rights under them legislation on working time, and minimum wages, may be the subject of a complaint to the Workplace Relations Commission. It may award up to 2 years’;’ remuneration where a complaint of penalisation is upheld.
An employer may not penalise or threaten to penalise an employee for
- invoking any right in the legislation
- in good faith opposing by lawful means any thing unlawful under the Act
- giving evidence in proceedings or
- giving notice of his intention to do any of the above.
Alternatively the general protected disclosures legislation may apply.
Penalisation’ means any act or omission by an employer or a person acting on behalf of an employer that affects an employee to his or her detriment with respect to any term or condition of his or her employment. It also includes—
- suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2015), or the threat of suspension, lay-off or dismissal,
- demotion or loss of opportunity for promotion,
- transfer of duties, change of location of place of work, reduction in wages or change in working hours,
- imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty), and
- coercion or intimidation.