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Zero hours contract and suspension

Published 03 August 2018

Is someone employed on a zero hours contract entitled to be paid if they suspended from work pending the investigation?

The answer is yes.

Facts of the case

Ms Obi, the Claimant, was a student on a zero hours contract(1)with a Company called Rice Shack, the Respondent. There was no obligation to provide work and no obligation to accept the work and although the Claimant was not guaranteed any hours, she generally worked around 15 hours a week which fitted in with her college studies.

Following an incident at work Ms Obi was suspended(2)by the Respondent on 6th March 2016 pending the disciplinary investigation but the reality was that the disciplinary process was never organised or followed through. Ms Obi also raised a grievance with the Company raising various issues including being suspended without pay, which was not progressed either.

As the Claimant was on a zero hours contract the Respondent did not offered any work to her and thus was not paid for the duration of her suspension – which lasted 9 months.

After Ms Obi lodged her claim at the tribunal, the Respondent offered the her some work, to which she replied she was happy to accept work provided her outstanding money was paid.

The Law

Unless an employer has a clear contractual right to suspend their employee without pay, it should pay an employee during a disciplinary suspension. If an employer does not pay during such suspension, the employee may bring a claim for unauthorised deduction from wages.

Decision

The Employment Tribunal(3)accepted the claim. As the Claimant was on a zero-hours contract she was entitled to average pay for the duration of her suspension, which in this case, was 15 hours a week to be paid for 9 months. This applied the same principle that a defined-hours employee is entitled to full pay for the duration of their suspension.

The Respondent appealed to the Employment Appeal Tribunal(4)(EAT), as they believed the Claimant was only entitled to pay up until she took other employment in August. The EAT rejected the appeal. zero hours contracts cannot be exclusive and thus the Claimant was entitled to average pay from the date of suspension to the date the Respondent next offered her a shift in December and thus lifted the suspension.

The EAT also noted that the Respondent was not able to point to some misconduct on Ms Obi’s part that would have entitled it to terminate the employment contract immediately. Ms Obi had no obligation to decline other employment and was under no obligation to disclose to Respondent what employment she had taken on.

The takeaway point:

Suspending employees should never be a knee jerk reaction and the employer should careful consideration all the information available to them before taking the decision to suspend. Suspending zero hour’s employee indefinitely will not be a means to avoid dismissal and they should be treated no different to any of your regular staff and zero hours staff will be entitled to average pay for the duration of the suspension.

References

1. Zero Hour Contracts, Rights, Law, Rules & Benefits [Internet]. 2017 [cited 2018 Jul 30]. Available from: http://www.acas.org.uk/index.aspx?articleid=4468

2. What You Need to Know About Suspending Employees [Internet]. Castle Associates Ltd. 2016 [cited 2018 Jul 30]. Available from: https://castleassociates.org.uk/support-centre/what-you-need-know-about-suspending-employees

3. Employment Tribunal - GOV.UK [Internet]. Available from: https://www.gov.uk/courts-tribunals/employment-tribunal

4. Employment Appeal Tribunal - GOV.UK [Internet]. Available from: https://www.gov.uk/courts-tribunals/employment-appeal-tribunal

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A reputation built on success

For employment law advice or if you are affected or want information and support by any of the issues in this article please give us a call. 

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