Exclusivity Clauses: Anti-Avoidance Measures

This week details emerged about a claim issued against the Unite union by a lecturer who says he was working under a zero hours contract. This is difficult publicity for a union which has been prominent in the campaign against zero hours contracts.

It also follows hot on the heels of the ban on exclusivity clauses, which came into force last year and most recently the new anti-avoidance provisions. The Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015 came into force on 11 January 2016. They provide zero hours workers with remedies against employers who include exclusivity clauses in their contracts (such clauses are now unenforceable):

Employees under zero hours contracts can claim that their dismissal was an automatically unfair dismissal (where no qualifying period of service is required) if the principal reason is the employee breached an exclusivity clause; and

Employees and workers can bring a claim if they suffer a detriment as a result of breaching exclusivity terms in a zero hours contract.

Zero hours contracts do remain appropriate in certain circumstances, including for seasonal work, start up businesses and one-off special events. They are also said to remain in use by approximately 17% of private firms. However, to ensure compliance with these changes we suggest that employers remove exclusivity clauses from zero hours contracts. Such clauses are unenforceable in any event and, if they are removed, this will serve to reduce the risk that any later action against the employee is related to a breach of such a clause.