Zero-hours contracts, which I’ll call ZHCs, have been around for a long time, benefiting both employers and workers with their flexibility. However, since 2004, there’s been a huge increase in the number of ZHCs. So, why the increase?

An employer responding to new legislation is likely to ask, ‘Does it apply to me and, if so, how can I avoid it and how do I minimise its cost?’ Some remainers claim that only the EU will protect workers’ rights. Well, I have news for you: EU employment directives are subjected to years of consultation. In other words, lobbyists employed by industry work hard to incorporate exclusions and loopholes in them, such as qualifying periods. Qualifying periods in legislation merely lead to the termination of a worker’s employment before the end of that qualifying period.

We now have three categories of workers: employees, the self-employed and a third, intermediate construct, that of a worker, which is largely thanks to the EU—each with a wide range of rights accruing to their category. The category a worker falls into determines the extent of their rights. A big driver in the increase of ZHCs and abuses of employment contracts has been the desire of employers to minimise a worker’s chances of being deemed to be an employee. Another driver is for employers to ensure that any costs associated with the rights of non-employees are minimised.

The employment appeal tribunal is alive to this political issue and said, in 2007,

‘that armies of lawyers will simply place substitution clauses, or clauses denying any obligation to accept or provide work in employment contracts’.

Consequently, the employment appeal tribunal has said that it’s the reality of the working relationship that they will look at, not the contractual wording, because they’re alive to the fact that employers will merely alter the terms of their workers’ contracts in response to not just new legislation, but case law emanating from the tribunal and elsewhere. This may make life more difficult for employers, but their response to this is likely to be simply to work to the terms of the contract. Consequently, less secure and regular work is available, which is emblematic of the worst ZHCs.

The parties opposite may suggest more regulation, resulting in evermore complexity. The left will no doubt claim that the answer is simply to ban ZHCs or regulate them out of existence. Labour suggested in the Pickavance report of 2014 that legislation should be introduced banning employers from requiring workers to be available for work. This law would do nothing but encourage the employer to deny that a worker is an employee and consequently deny them their entitlements and rights. They also recommended that after a period of six months—which now seems to have been reduced to 12 weeks—on a ZHC, a worker should be entitled to a minimum-hours contract.

Now, I’m not going to criticise the motivation of the report and what the authors were trying to do—I’m sure they really did mean well. But, given how employers have reacted to various employment laws over the years, I think we can safely assume that, if the UK were to give a right to a minimum-hours contract after six months, say, few workers on ZHCs would be employed after that period. Similarly, stipulating—as recommended by the Pickavance report—that a resulting minimum-hours contract should be based on the regular worked hours only ensures that workers will be given even less regular work than they are now, during that first six-month period.

So, complicating an already complex system and making people ever more dependent on experts, whether they be in law firms or unions, may be good for those groups, but not for the people who are being exploited. We need to balance the benefits of ZHCs with the need for secure, reliable employment. Employers have been abusing their greater bargaining power, and workers’ bargaining powers are now non-existent, thanks to the ready supply of replacement staff provided by the unlimited immigration so beloved of the other parties.