Zero hours contracts are the name the media have given to arrangements where workers have no set minimum working hours. They are also sometimes called bank or flexible contracts, and many employers like them because they mean that they do not have to pay for labour that they do not need. As we have covered in our previous articles, any employer who uses zero hours contracts should ensure that the terms are properly documented and that they take legal advice so as to try and avoid the potential pitfalls.
Some less scrupulous employers like using zero hours contracts because they are perceived as giving workers little in the way of employment rights. However, a recent case illustrates that zero hours workers can and do have rights that they can enforce.
The case of Southern v Britannia Hotels and another (2015) related to a 22 year old waitress employed on a zero hours contract who alleged she had been subjected to serious sexual harassment by her manager. The harassment was over a period of 8 months.
It was only during the course of an investigation into another colleague’s bullying allegation that Ms Southern confided in the investigating manager in detail about what had been happening and submitted a written complaint. Unfortunately when an investigation was finally undertaken it was not conducted thoroughly.
Despite her evidence being corroborated by another witness, the outcome of the complaint was only that the manager’s behaviour and mannerisms had been ‘inappropriate’, and no action was taken against him.
Following a subsequent re-investigation (which was still not carried out sufficiently thoroughly) the perpetrator was sent on a bullying and harassment course, but still had no sanction imposed.
The fact that Ms Southern was on a zero hours contract was relevant in a number of ways. In particular, the Claimant had felt unable to raise the allegation initially in case it resulted in her not being offered shifts, which is a particular vulnerability of zero hours staff. There was also the suggestion that her allegation had not been treated particularly seriously because of her zero hours status.
The Employment Tribunal upheld her complaint of sexual harassment. Britannia Hotels tried to rely on the statutory defence to harassment, which is that they had taken reasonable steps to prevent the conduct in question, but this was rejected by the Tribunal as it was clear that whatever policies or training they may have had in place they clearly had not worked.
Taking all of the circumstances into account, particularly the seriousness of the harassment, the vulnerability of the Claimant (given her age and zero hours status) and also the dismissive way in which the company had treated her complaint, the Employment Tribunal concluded that an award of £19,500 for injury to feelings was appropriate.
This case does not establish any new law, but it is worth noting as an example of Tribunals taking a robust approach in support of zero hours workers who have legitimate claims. Employers would be wise to consider putting measures in place to ensure that zero hours workers are able to raise concerns about matters such as discrimination or whistleblowing without fear of being denied shifts.
If you would like advice about zero hours workers or any discrimination issue, then we can help. Please call us on 01243 836840 for a no obligation chat or email us at [email protected]