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Furlough ending, casual contract

(15 Posts)
bettycat81 Fri 14-Aug-20 11:49:27

The company I work for is about to make a huge ammount of redundancies.

I work in sales and all full time staff in my grade are up for redundancy. Their furlough will currently take them up to D day.

I have a zero hours contract and have worked 2 days a week for the past 8 years having worked full time in various roles for the same company previously for many years. Our (casual staff) furlough is ending sooner than D day and we are being kept on the books with little prospect of work being available for us.

Does this seem right?

OP’s posts: |
Moondust001 Fri 14-Aug-20 13:17:19

What do you think isn't right? If you are on a zero hours contract, and assuming that contact computes with the law on zero hours, your area a worker and not an employee. So you would have no redundancy rights in law. Being kept on the books for if work became available is legal. I don't understand what you think is wrong here.

flowery Fri 14-Aug-20 13:17:56

If you’ve worked 2 days a week for them for 8 years you are not ‘casual’, whatever your contract says. You could certainly make an argument that you are an employee therefore entitled to redundancy pay.

Moondust001 Fri 14-Aug-20 13:40:42

flowery

If you’ve worked 2 days a week for them for 8 years you are not ‘casual’, whatever your contract says. You could certainly make an argument that you are an employee therefore entitled to redundancy pay.

Working two days a week isn't the test of a zero hours contract though, is it? If there is no guarantee of hours and if they could genuinely refuse to work any hours offered, then that is legally a zero hours contract. So, as I said, if the contract is in line with the law on zero hours, then there is no right to redundancy pay. I don't agree with zero hours contracts and they are too easily abused, but people can and do work "full-time" on zero hours contracts with no mutuality of obligation. Working a couple of days a week on zero hours is not in itself unusual or unlawful.

flowery Fri 14-Aug-20 16:09:42

If someone has been working 2 days a week consistently for 8 years there would certainly be a very strong argument that by custom and practice those had become contractual hours.

As for employment status- worker or employee- what a contract says is of little relevance other than to indicate the intention of the parties at the time- it’s the nature of the relationship a tribunal (or HMRC) will look at to determine employment status and someone who works consistently and regularly for a number of years is unlikely IME to be denied employment rights and only deemed to have casual worker status.

flowery Fri 14-Aug-20 16:10:43

If calling it zero hours (regardless of reality) was a way of getting out of legal obligations, every employer would do it.

bettycat81 Fri 14-Aug-20 17:46:28

Thank you both for taking the time to reply. Having spent a little time doing some very basic research today there are a couple of reasons why I think I may be able to claim employee status.

Firstly, as I already mentioned, the regularity in which I have worked the days I do. This is further backed up by the fact that during this time I was seconded into another department and rostered for set days months in advance based on the days they knew I worked.

Most interestingly today I dug out my contract, signed 8 yrs ago, and I actually signed a full time contract. I now remember questioning the hours at the time and being told by HR it didn't matter, they knew when I wanted to work. So I have nothing to inform me of my rights, change of (from previous employment with them) or lack of as a casual employee.

OP’s posts: |
Moondust001 Fri 14-Aug-20 19:12:27

flowery

If calling it zero hours (regardless of reality) was a way of getting out of legal obligations, every employer would do it.

I am aware of that. But that does not mean that such contracts do not exist, and asserting that the test is the days worked is misleading. As it happens, however, it seems to be moot- the OP appears to have been mistaken and it isn't a zero hours contract at all. If there is a dispute though, it will be for a tribunal to decide. However, the law is clear that a zero hours contract must be stipulated to in writing. If that does not exist, then it cannot be a zero hours contract.

bettycat81 Fri 14-Aug-20 19:33:28

Not mistaken as such as I do work casual hours and have done since signing the contract. My naïve assumption was that I am casually employed Also, historically, there have only been two types of contract; full time or casual.

I think this was either a mistake on their part (HR wasn't particularly great at the time) or they had taken pity on me as a request to return to a more senior role, that I had held, part time had been denied.

Either way it puts me in good/better stead right?

OP’s posts: |
Moondust001 Sat 15-Aug-20 07:24:31

Assuming that you have no written zero hours contract, then yes, it does. Although what that means may be very little. I'm still not entirely clear what you were asking though, as you haven't clarified what it is that you don't think should be "right" about the employers actions. Are you wanting to be made redundant? Because in principal, ignoring the question s around the contract status, they aren't doing anything "wrong" in their approach. Proving you are not "casual" or zero hours may be simple enough, but so what?

flowery Sun 16-Aug-20 13:46:33

”But that does not mean that such contracts do not exist, and asserting that the test is the days worked is misleading.”

Never said such contracts don’t exist. And I never “asserted” that the (only) test is the days worked. Far from it. But it would be highly unlikely for someone who regularly works two days a week consistently for 8 years to be deemed as casual because of other factors in the relationship, in fact I would be astonished at such a finding.

Regular hours and casual worker status can clearly coexist, but I’d expect to see that in seasonal work or similar. Someone who works regular hours for years? Nope.

bettycat81 Mon 17-Aug-20 20:16:48

Thank you both.

I think I may be able to clarify what I initially meant as I have read further into it a little but as I said I am very naive to much of the jargon.

I had a full time contract (for longer than 2 years) and then went straight into a casual contract (for arguments sake let's say it definitely was a casual contract as I have other colleagues in this boat). I have heard that the rights I gained during fulltime employment carry over. Does this include redundancy?

OP’s posts: |
flowery Tue 18-Aug-20 08:01:49

”I had a full time contract (for longer than 2 years) and then went straight into a casual contract (for arguments sake let's say it definitely was a casual contract as I have other colleagues in this boat). I have heard that the rights I gained during fulltime employment carry over. Does this include redundancy?”

You can’t do “let’s just say for argument’s sake” because it’s a crucial point. Your employment status is the key issue- either you are an ‘employee’ (and those with zero hours can easily be employees) or you are a ‘worker’. Your employment status is based on the reality of the situation, not on what is written in a document.

It is unusual to move from employee status to worker status, unless there is a dramatic change in the nature of the work and the relationship. It is incredibly unlikely that someone who has worked continuously and consistently the same/similar hours week in week out for the same employer for 8 years would be found to be a ‘worker’ not an employee, particularly if they were an employee of the same organisation beforehand. I would be astonished.

Therefore I am as certain as it is possible to be based on the information you have given that you are not a worker, you are an employee, and assuming there wasn’t a break in your employment, you have continuous service all the way through, and employment rights such as redundancy.

Moondust001 Tue 18-Aug-20 21:42:26

It would be easier to provide answers if you would answer the question I've asked you twice - why are you asking? What do you want from this? Are you trying to protect your job, trying to get made redundant, or what? What is your endgame here?

bettycat81 Tue 18-Aug-20 21:53:52

I would like to work but there is very limited chance of that. I cannot remain on the books with no chance of work, my financial situation at home is (for many reasons) precarious, and I need some income or money to fall back on (I am looking for alternative work). I doubt I would be selected to remain if I was put into the pool because the reduction in staffing levels are going to be so big.

So therefore I am left with redundancy.

OP’s posts: |

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