Marchem appealed the decision to the Royal Court, which found that the JET had erred in law. The JET had used the correct test— mutuality of obligation—but had applied it incorrectly. The test does not only require obligation to be absent on one side, but on both. Moreover, "an expectation is different from an obligation". While there was ample evidence that Marchem was indeed obliged to offer 30 hours of work per week, the JET had failed to consider whether Ms Carre was obliged to accept that offer and work those 30 hours. One key piece of evidence that was not mentioned in the JET's judgment was a graph showing that for more than half of the weeks that followed the renegotiation of the contract Ms Carre had worked less than 30 hours.
The Royal Court has remitted the case to a differently constituted JET to decide the matter afresh, and this time pay due attention to both sides of the mutuality equation.
Easier said than done A case considered by the JET in the light of the Royal Court's finding shows how difficult it is to apply the mutuality test. In Burger v Silvio Alvez Motor Repairs Ltd , the JET could not reach a unanimous decision over whether there was a genuine zero hours contract or whether Mr Burger, a skilled car mechanic, was an employee and therefore entitled to bring a claim for unfair dismissal. He had been hired on a zero hours contract, but was told at interview that he would be given at least 30-35 hours work per week on average. Two of the JET panel members concluded that there did exist a sufficient mutuality of obligation for there to have been a contract of employment, albeit one which involved flexible working hours. They were swayed by evidence that Mr Burger would not have accepted the role if it had not approached full-time hours and that, although he accepted that some days he would not have work, he would have left the job if that had happened too often. Similarly, Silvio Alvez said if Mr Burger had been unavailable for work on a "continuous basis" he would have sought to replace him. In addition, the contract required either party to give notice to terminate the contract and for Mr Burger to provide doctor's notes if he was ever ill for more than two days, all of which pointed to the existence of an employment contract. The Deputy Chair of the JET disagreed. In his view, the relationship was founded on a mutuality of expectation rather than of obligation. Both parties expected the offer of work to be made and accepted, but were not obliged to provide the work or carry it out. Moreover, he argued, the parties had entered into the contract of their own freewill, and Mr Burger could have left at any point—the need to give notice was a courtesy, rather than an obligation. Since the majority view prevails, Mr Burger is entitled to bring a claim for unfair dismissal. Comment (Legal Week Law) The Royal Court decision provides some welcome clarity on the treatment of zero hours contracts in Jersey. It confirms that mutuality of obligation is the test the courts will use to see if a zero hours contract is genuine, but that the test needs to be applied both to the employer and to the employee. The case should not, however, provide succour to employers who use zero hours contracts to circumvent employee protections. There are situations where zero hours contracts are appropriate, such as where a business has a "bank" of workers upon which it can call during busy times. But if regular work is offered over a period of time an employer-employee relationship may well be created notwithstanding that the words "zero hours" are written on the contract. Zero hours contracts continue to be regarded as controversial since they strip workers of rights and a guaranteed income stream. Yet they can be essential for businesses with irregular workflows, and can provide welcome flexibility for employees as well. We would recommend caution (and proper advice) if you think zero hours contracts might be suitable for your business needs.
Zero hours contracts – ONS update 3 September 2015
According to the latest figures from the Office for National Statistics (ONS) the number of people employed on a ‘zero-hours contract’ has increased, however this could be down to greater recognition of the term, rather than new contracts. The Office for National Statistics (ONS) produces biannual estimates of the number of contracts that do not guarantee a minimum number of hours, based on a survey of businesses. The measure complements the figures from the Labour Force Survey (LFS) which show the number of people who report that they are on a zero-hours contract in their main employment. This report contains the latest figures from the LFS as well as new estimates from the third time the ONS has surveyed businesses.
The latest estimate shows:
CIPP Policy News Journal
25/04/2016, Page 131 of 453
Made with FlippingBook - Online magazine maker