“The concern to which tribunals must be alive is that armies of lawyers will simply place substitution clauses, or clauses denying any obligation to accept or provide work in employment contracts, as a matter of form, even where such terms do not begin to reflect the real relationship.” (Consistent Group Ltd v Kalwak [2007] IRLR 560)

The search for more and more sophisticated means by which an employer may have the benefits of a person’s work, without the responsibilities, has taken many forms in recent years: casual worker contracts, contracts placing chains of contractors and sub-contractors between the worker and the employer… The big picture seems to be that the courts are decreasingly willing to take these contracts at face value – finding that all these categories are in fact employees, with the important (and indefensible) anomaly of agency workers who remain, thank to the decision of Elias LJ in James v Greenwich Council [2007] ICR 577, bereft of the main employment law rights.

The most recent wheeze of the employers has been to place workers on “zero hours contracts”, ostensibly giving the worker no right to expect the continuation of their contract beyond that day’s shift, while at the same time requiring them to work under the supervision and control of managers, while they are actually at work. The “zero hours” refers to the amount of future work that an employer offers the worker in theory, absolutely none. Invariably, on closer inspection, the “zero hours” turns out to be nothing of the sort. The company really does want workers to attend – whether 5 or 4 days per week, or whether only on Tuesdays in the teaching term, or for whatever period of time. The employer always wants the reliability of labour as dependable resource, which explains why it has issued a written contract in the first place. (In the true “casual worker” cases, which are now as rare as hen’s teeth, there is almost never any such document).

Fortunately, in a recent decision of the EAT, Pulse Healthcare Ltd v Carewatch Care Services Ltd & Ors [2012] EAR 0123/12, which concerned healthcare workers who said that they had been employed on regular shifts amounting to 36 or 24 hours per week, HHJ Richardson dealt with the employer’s purported zero hours contracts by saying, very simply, that they did not reflect the reality of the situation, and in these terms the Tribunal was right to focus on the employment reality rather than the piece of paper.

The decision is good news in particular for workers in Further and Higher Education, where such bogus arrangements are increasingly prevalent.