The Exclusivity Terms for Zero Hours Workers (Unenforceability and Redress) Regulations 2022
| Jurisdiction | UK Non-devolved |
| Citation | SI 2022/1145 |
2022 No. 1145
Terms And Conditions Of Employment
The Exclusivity Terms for Zero Hours Workers (Unenforceability and Redress) Regulations 2022
Made 7th November 2022
Coming into force 5th December 2022
The Secretary of State makes the following Regulations in exercise of the powers conferred by sections 27B(1), (2)(c), (3) and (5) and 209(1) of the Employment Rights Act 19961.
A draft of these Regulations was laid before Parliament in accordance with section 236(3) of the Employment Rights Act 19962and approved by resolution of each House of Parliament.
PART 1
Preliminary
Citation, commencement and extent
1.—(1) These Regulations may be cited as the Exclusivity Terms for Zero Hours Workers (Unenforceability and Redress) Regulations 2022.
(2) These Regulations come into force at the end of the period of 28 days beginning with the day on which they are made.
(3) These Regulations extend to England and Wales and Scotland.
Interpretation
2. In these Regulations—
“the 1996 Act” means the Employment Rights Act 1996;
“exclusivity term” means any provision or purported provision of a contract which—
(a) prohibits the worker from doing work or performing services under another contract or under any other arrangement; or
(b) prohibits the worker from doing so without the employer’s consent;
“the lower earnings limit” is the amount specified for the purpose of section 5(1)(a) of the Social Security Contributions and Benefits Act 19923;
“specified contract” has the meaning given in regulation 3(2);
“wages” has the same meaning as in section 27 of the 1996 Act4;
“zero hours contract” has the same meaning as in section 27A of the 1996 Act.
PART 2
Unenforceability
Unenforceability
3.—(1) Any provision of a specified contract which contains an exclusivity term is unenforceable against a worker.
(2) In these Regulations, a “specified contract” is a contract of employment or other worker’s contract which is not a zero hours contract and entitles a worker to be paid under that contract, net average weekly wages that do not exceed the lower earnings limit.
(3) A specified contract is specified for the purpose of section 27B(2)(c) of the 1996 Act.
PART 3
Calculation of net average weekly wages
Permanent contracts of employment or other worker’s contracts
4. Where the contract of employment or other worker’s contract is permanent, the average weekly wages are calculated by dividing by 52 the total remuneration to which the worker is entitled under that contract in respect of a period of 52 weeks.
All other contracts of employment or other worker’s contracts
5. Where regulation 4 does not apply, the average weekly wages are calculated by dividing the total remuneration to which the worker is entitled under their contract by the number of weeks during which their contract is expected to continue.
Net average weekly wages
6. The net average weekly wages are calculated by subtracting all deductions of whatever nature from the average weekly wages.
PART 4
Redress and Remedies
Unfair dismissal and the right not to be subjected to a detriment
7.—(1) An employee who works under a specified contract is to be regarded for the purpose of Part 10 of the 1996 Act as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is the reason specified in paragraph (3).
(2) A worker who works under a specified contract has the right not to be subjected to any detriment by, or as a result of, any act, or any deliberate failure to act, of an employer done for the reason specified in paragraph (3).
(3) The reason is that the worker breached an exclusivity term of their specified contract.
(4) Paragraph (2) does not apply where the detriment in question amounts to a dismissal of an employee within the meaning of Part 10 of the 1996 Act.
(5) Section 108 of the 1996 Act (qualifying period of employment) does not apply in relation to a dismissal to which paragraph (1) applies.
Complaints to employment tribunals
8.—(1) Subject to regulation 7(4), a worker may present a complaint to an employment tribunal that an employer has infringed the right conferred on the worker by regulation 7(2).
(2) Subject to paragraph (3), an employment tribunal must not consider a complaint under this regulation unless it is presented before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates, or where that act or failure is part of a series of similar acts or failures, the last of them.
(3) A tribunal may consider any such complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.
(4) For the purposes of paragraph (2)—
(a)
(a) where an act extends over a period, the “date of the act” means the last day of that period; and
(b)
(b) failure to do something is to be treated as occurring when the person in question decided on it.
(5) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something—
(a)
(a) when P does an act inconsistent with doing it, or
(b)
(b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.
(6) Where a worker presents a complaint under this regulation it is for the employer to identify the ground on which any act, or deliberate failure to act, was done.
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