Zero hours employment contracts

Transcription

1 Zero hours employment contracts Introduction With a membership of over 410,000 registered nurses, midwives, health visitors, nursing students, health care assistants and nurse cadets, the Royal College of Nursing (RCN) is the voice of nursing across the UK and the largest professional union of nursing staff in the world. RCN members work in a variety of hospital and community settings in the NHS and the independent sector. The RCN promotes patient and nursing interests on a wide range of issues by working closely with the Government, the UK parliaments and other national and European political institutions, trade unions, professional bodies and voluntary organisations. Background The RCN is pleased to respond to this consultation. Responses have been invited across four areas; exclusivity, transparency, employers and individuals. As an employer, we have taken advice and guidance from our legal advisers on the use of zero hours contracts. We sought legal advice when drafting our own zero hours contract to ensure that it was compliant with relevant legislation and represented a fair set of terms & conditions for people we would employ on this basis General Comments Our response is focused on comments in respect of the section on exclusivity and transparency questions 1-13 as well as questions where we respond in respect of our position as an employer. We have made members aware of the consultation should they wish to respond directly to the consultation in respect of questions In parallel we have also undertaken a small cross sectional member survey on issues relating to zero hours contracts. While the response rate to the survey was low and could not be considered to be representative a number of interesting points emerged. Many of our members do work in forms of zero hours contracts. In the main this is mainly work through a nurse bank or nursing agency. In both cases members make themselves available for work without knowing if any work is available. Many of our respondents valued the ability to work on such contracts at particular points in their lives. A cross section of comments is included in Annex A. 1

2 In our questionnaire we asked members Have you ever worked on a zero hour s contract? 35% of members responded yes to this question. We also asked Were / are you penalised for not accepting work when offered? 80% of respondents said they were not penalised while 8% did not know and 12% thought that they had been. Because our members who work on a bank or through an agency are filling in the main established posts i.e. posts that have a nationally agreed rate of pay attached to them we also asked Were / are you paid the right rate for the job as per the appropriate rate for that work? 65% of respondents said that they were paid the correct rate while 10% did not know. Many members who work on a bank or through an agency also have a substantive contract of employment with an employer. We have general concerns that in some areas nurses are not offered the opportunity to work overtime and are rather redirected to work these extra hours through the bank system. In some cases the rates of pay through a bank system would be less than overtime rates. We asked If you also had/have a contract of employment, were / are you compelled to work extra hours through a bank rather than being offered overtime? The response here was more even with 43% saying that they had been directed through the bank and 44% feeling that they had not been put in this position. Responses to specific questions from the consultation Question 1 Are there circumstances in which it is justifiable to include an exclusivity clause in a zero hour s contract? If you answer yes, please describe the circumstances that justify such a clause. Given the limited employment rights afforded to individuals on zero hours contracts and their corresponding lack of job and financial security, we can t see any circumstances in which it would be justifiable to include an exclusivity clause in a zero hours contracts. Question 2 Do you think the government should seek to ban the use of exclusivity clauses in employment contracts with no guarantee of work? Yes we do think the government should seek to ban the use of exclusivity clauses in employment contracts with no guarantee of work. The primary aim of those working on zero hours contracts is the desire for flexibility and insisting that individuals be available in the absence of work, and additionally preventing them from working elsewhere, is the antithesis of this. 2

3 Question 3 Do you think an outright ban on exclusivity clauses in employment contracts with no guarantee of work would discourage employers from creating jobs? Are there any other unintended consequences of government action that should also be considered? We don t believe this would discourage employers from creating jobs. Zero hours contracts are typically used to provide staff for fluctuations in demand, staff shortages or bank work. Even if exclusivity clauses were banned for individuals on zero hours contracts, employers would still face these difficult situations and the necessity for staff and creation of jobs will remain. Furthermore, there are other contractual means by which an employer could require a member of staff not to compete if that was a genuine concern. If an employer required exclusivity as standard and that was no longer possible in a zero hours contract, employers would then properly have to issue individuals in these circumstances with contracts of employment. Question 4 Do you think the government should provide more focused guidance on the use of exclusivity clauses, for example setting out commonly accepted circumstances when they are justified and how to ensure both parties are clear on what the clause means? If you answer yes, what information should be included? We don t agree the government should provide more focused guidance on exclusivity clauses in zero hour s contracts. As stated in our response to questions 1 & 2 above we endorse the banning of exclusivity clauses in zero hours contracts. Question 5 Would a Code of Practice setting out fair and reasonable use of exclusivity clauses in zero hours contracts (a) help guide employers in their use, and (b) help individuals understand and challenge unfair practices? Please explain your response. Notwithstanding our response to question 5 above, if the government were to issue a Code of Practice in relation to exclusivity clauses in zero hours contracts we are of the general view (subject to the contents of the code), that it would assist both employers and individuals to better understand their respective positions. However, the Code of Practice would have to be government endorsed. None of this detracts from our contention that exclusivity clauses should be banned, and that voluntary measures are insufficient. 3

4 Question 6 Do you think existing guidance and common law provision are sufficient to allow individuals to challenge exclusivity clauses and therefore no specific action from government is required? No we do not think existing guidance and common law provisions are sufficient to allow individuals to challenge exclusivity clauses in zero hours contracts. Many individuals on zero hours contracts are unclear of their basic employment rights let alone being in a position to legally challenge an exclusivity clause. Question 7 If you have sought employment information, advice, or guidance on zero hours contracts before, (a) where did you receive it from, (b) how helpful was it to you in terms of explaining your position in regard to zero hours contracts and (c) how could it have been improved. Not Applicable. Question 8 Would the additional information, advice and guidance suggested in the first option (first bullet point, Para 41), help individuals and business to understand their rights and obligations? If not, what other information should Government provide? Yes it would assist individuals and employers to understand their rights and obligations. Particularly in relation to individuals, guidance on difficult issues such as holiday pay, the national minimum wage, statutory sick pay and the availability of welfare benefits for those on zero hours contracts would also assist. Question 9 Further to your answer to question 5, would a broader employer-led Code of Practice covering all best practice on zero hours contracts encourage more transparency? If a Code of Practice were to be introduced we would suggest it should be a collaborative venture with input from both employers and individuals and their representatives. Again, whether it would encourage transparency would depend on the contents of the Code and its accessibility. None of this detracts from our contention that exclusivity clauses should be banned, and that voluntary measures are insufficient. 4

5 Question 10 Do you think that model clauses for zero hours contracts would assist employers in drawing up zero hours contracts, and support employers and individuals to better understand their employment rights and obligations? If you answer yes, what should be the key considerations be in producing model clauses? Model clauses will only assist to the extent that individual employers incorporate them into their zero hour s contracts. It may also be difficult to produce a standard model clause that could apply universally to the various sectors that utilise zero hour s contracts. Guidance regarding determining an individual s employment status and what employment rights attach to that status may be a better vehicle for imparting this information than model clauses. None of this detracts from our contention that exclusivity clauses should be banned, and that voluntary measures are insufficient. Question 11 Do you think that existing employment law, combined with greater transparency over the terms of zero hours contracts, is the best way of ensuring individuals on zero hours contracts are making informed choices about the right contract for them to be on? Yes we do think existing employment law combined with greater transparency in the form of guidance regarding zero hours contracts is the best way of ensuring individuals on zero hours contracts are fully aware of their employment rights. None of this detracts from our contention that exclusivity clauses should be banned, and that voluntary measures are insufficient. Question 12 Further to your answer to Question 11, do you think there is more employers can do to inform individuals on zero hours contracts what their rights and terms are? Employers should ensure all individuals on zero hours contracts are provided with a written statement of their terms and conditions which should include details of their status, rights and obligations. 5

6 Question 13 Are there any unintended consequences of introducing any of these options? Please explain your response. Unfortunately, regulating or raising awareness of best practice in relation to zero hours contracts may force employers to revert to less flexible ways of working such as short hour contracts or using agency staff which would of course have cost implications. Employer questions Question 14 Do you use zero hours contracts in your business and if so, for what purpose? Yes For what purpose: To allow the organisation to respond to unpredictable peaks in workload. Question 15 Have you offered a job on a zero hours contract basis that includes an exclusivity clause? If so, for what reason? No Question 16 Are you aware of staff you employ on a zero hours contract who work for other employers? Yes Question 17 Do you offer staff on a zero hours contract training or opportunities to develop their skills? Is this usually just at the start of the contract or do you offer training opportunities throughout the employment relationship? Yes there is some standard training given at the beginning of their employment but access to other training and development is also available. All mandatory training requirements are the same as for other staff. 6

7 Question 18 How many hours on average do you offer individuals on a zero hours contract in a week or month? On average 10 hours per person per week. Question 19 Do you let individuals have a choice or say in how many hours or when they work? Yes individuals are free to accept or decline work and work carried out is done on dates and times agreed with their line manager. Question 20 What is your policy when an individual declines hours of work you offer? No formal policy exists, if one individual is unable to take on the work offered, it can be offered to another zero hours worker (if there is one in that department) or absorbed into the workload for the other staff in the department. Question 21 Do you employ any individuals on a zero hours contract who work a pattern of regular hours? If so: i) how many hours a week and for what period of time? ii) why do you employ that individual on a zero hours contract basis? No Question 22 How much notice do you give an individual if the number of hours they work will decrease or drop off to zero? There is no formal process/policy for this, but workload for our zero hours staff is primarily based on employment relations cases, so it is clear in advance when the workload will reduce or case, based on when the cases are resolved. Question 23 If you offer additional hours of work how much notice do you give the individual? And how e.g. phone call? Work is usually offered by phone, with as much notice given as possible but the nature of the caseload means that this can vary in practice. 7

8 Question 24 Do you understand what employment rights an individual is entitled to when employed on a zero hours contract? If so: i) what do you believe they are? ii) did you explain these to the individual? iii) how did you find out? We use the same terms and conditions for our zero hours staff as we do for our other staff. Only the number of contracted hours vary all other terms and conditions are the same. Regardless of the statutory employment rights of zero hours workers, we Question 25 How do you calculate paid annual leave for an individual on a zero hours contract? Paid annual leave is accrued based on actual hours worked. In keeping with the leave entitlements for our other staff, paid leave is accrued at the rate of 8 minutes for each hour worked. This includes not only our basic leave entitlement, but also a proportion of bank holidays. Question 26 When you advertise or recruit on a zero hours contract basis: i) do you explain the implications of this type of contract: ii) at what stage do you make it clear that there is no guarantee of a minimum hours of work? Yes all the above information is made clear prior to interview and at the interviews themselves. 8

9 RCN Response to DBIS consultation on Zero hours employment contracts Annex A Selection of Member comments from our survey some comments have been edited to remove personal information that might identify them or their employer Criticisms of zero-hours contracts Downfall of zero hours contracts is not enough hours, no holiday pay, and managers putting you down to work without asking you first. Some managers expect you to work a period of notice when you leave which is ridiculous as you have no contract and are not obliged to I have spoken to nurses who have worked on Zero hours contracts and most do so because that is all they were offered, or were advised that they would still be given enough hours. However many found themselves in financial difficulty when the hours were no longer available. Zero hours contracts appear to give the impression of being employed when in reality it is worse than a Bank contract which, at least, is honest When you work for an agency I have worked this way but when the shifts dry up you have no pay and you need the stability of a contract when you have a mortgage and bills to pay out each month. Not good for carers or their clients. Domiciliary care providers operate on zero hours contracts. This is detrimental to patients/clients. High staff turnover. Continuous stream of new faces passing through someone home being given personal care. Zero hours are disastrous in care services. I've worked as a manager in a Dom care provider who operated zero hour s contracts. As a student nurse I did have a zero hour s contract, working as a bank nursing assistant as and when required by the trust. However, I did not rely on that income as I did not have responsibilities at the time for example having a mortgage as I do now. In addition if you regularly turned down shifts that were offered by the trust you were taken off the bank list and no longer got any shifts so really it was weighted in favour of the employer. I feel that the present coalition government is trying its best to erode the employment rights of employees including trying to make it easier to sack employees. I am disgusted quite frankly with zero hour s contracts and it s more in the favour of employers than employees. Zero hours contracts have been terribly misused. This kind of exploitation has to stop. Working people need to feel confident and secure at work. Individuals forced to work these types of contracts have got no employment rights and no job security 9

10 Positive comments on the experience. I think zero hours contracts work well when both employer and employee are both satisfied with the arrangement but perhaps there should be reviews at timely intervals when the employer or employees are looking for contracted hours. I understand that they can be abused, but for me as a semi-retired nurse it has been wonderful that I have been able to undertake useful and professionally challenging work in Clinical Audit whilst on a bank contract. Zero contract hours for me was as a Bank Nurse with a local nursing home. My contract still gave contributions to pension, and accrued annual leave hours. No one was paid overtime, although if you were on a regular contract, and they were short of staff, signing up to extra shifts beyond your contracted hours would sometimes get 1 an hour more. Not available for bank workers. I had what is now called a zero hours contract with an NHS nursing agency in London in the 1980's and 90's. In the 1980's when my children were young it meant I could work weekend nights to supplement my husband s wage, and later in the 1990's when my children were older, I was divorced and had a full time Job.., I was able to work as a staff nurse in school holidays to supplement my full time wage. I never felt penalised for turning shifts down and my wage as a staff nurse was slightly more per hour that of a full time nurse. My zero hour s contract always supplemented another wage and was never my only income and so I found it a positive experience. The only problem I had was, because I was offered work at various. Hospitals, I sometimes found myself being given responsibility in areas where I had little or no experience, which I felt was unsafe. So I soon learnt to be very careful about what work I accepted and made sure it was something I felt reasonably competent to do. The extra money I made this way was very, very helpful when bringing up three children. Zero hour contract useful to gain extra work for experience in another organisation or due to personal responsibilities. Used when studying and couldn't commit to fulltime hours. Have never experienced and zero hour contract with the same employers that I had full-time contract with but think in all experiences if I did then I would have been expected to cover through Bank (zero hour) contract and not overtime cheap get out clause. I am on the "Nurse Bank" the flexibility of days I want to work for reasonable pay is fine for me. It is all my choice I am offered more work than I want. To put this in to context I did work with a contract at the same hospital for over 25 years prior to me making this change I can take as many holidays as I want when I want It worked well for me as I can decline the work offer when it did not suite me. zero hours contract works for me - whilst I would not be happy to work on different grading etc. I currently work as an equal in all ways i.e. pay, responsibility 10

11 I work on nurse bank it is a great way for my young family. I have time off when suits me not ward rota and work when suits me. I worked Zero hours contract during my student nurse training. I was on the bank for HCA and porter roles. The contract arrangements meet my requirements, I found when I was on placement it was hard to work "extra" so zero/bank allowed me to refused work, equally when at uni I had more time to accept the work. Zero contracts/bank work was a great way of earning extra cash and supplementing the poor monthly bursaries which was only approx 450 per month back in I worked on the Nurse Bank for 10 years in the.department. I was never offered a contract during the years I worked there. The hours were fairly steady until from one day to another I, and others, were told we were no longer needed. We were told by a senior nurse that we could work for a.. clerical Bank, if we needed to. Mixed Comments They work well for my flexibility but annoyed that I get paid less then my contracted ours to do the same job. There are positive and negative aspects to zero hour s contracts. Zero hours contracts have been used successfully by some organisations to enable staff be 'kept in the system' and utilised to respond to crisis staffing situations. Staff have often been offered fixed and permanent posts following working in a zero hour s position. The transfer from zero hours to fixed and permanent contracts is more easily facilitated because the employment checks and induction programmes have already been undertaken by the staff member on the zero hours contract. Some organisations are perceived as exploiting workers by using the zero hours system and there is a reluctance currently to appoint staff on zero hours contracts because of the negative publicity surrounding staff terms and conditions on zero hours contracts. It allowed me to bring my children up with minimal need for child care and to spend Christmas, birthdays and sports days etc with them. The only reason I have now taken a contract is due to zero hours contract not paying sick time. 11

12 It is useful to have a zero hour s contract with an agency to complement my normal work hours if I need extra money. It is also useful to have as it allows me to gain experience in different areas and different specialties. It is very handy to have this work as a student as it allows me to earn money while studying and gain experience and also develop your skills for future employment. It is very useful as it allows me to get a taste of different specialties in order to guide my future career. If a ward uses bank staff often enough, you can go back to the same ward often enough to learn their routine and then you feel helpful to the team when you work there but at the same time, you can take time off when needed as you don't do set hours. You can take time off to do academic work or go on holiday. On the downside, going to a different ward each time is daunting and as you don't know the ward, you can be of minimal help on some wards. However, the downside of zero hour contracts is that wards are not hiring permanent staff now and using people on zero hours contracts too much, and the emergent over reliance on bank staff makes coordinating a shift impossible if you need staff that know the ward/ the work well. It means that even though you have enough staff in theory, you are still understaffed in reality as bank staff as reluctant to do things as they are new to the ward or don't know what to do. Zero hour contracts can be positive thing, to cover staff holidays and illness when they occur, the problem occurs with wards are forced to become reliant on bank staff on zero hours contract because then you may not fill the shift and you may have to contend with a person who does not know the ward yes they are favourable for some people, giving them the opportunity to work when it is convenient to themselves and to the employer, disadvantage is when they (employers) do not have a need for hours to be filled, i.e. when they have a full roster with no sickness to cover, or a week with fewer staff on holidays. Having worked as a cover nurse for the terminally ill, I felt this situation at times with lots of hours in one month and very little in another month. Also depends on who is issuing the work as well. Employment Relations Department Royal College of Nursing March