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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46149
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hi. I am currently employed as an apprentice, on a fixed term

Resolved Question:

Hi. I am currently employed as an apprentice, on a fixed term 1 year contract. My contract reads that I "will be employed on an as required basis" and "will generally only be paid for hours worked or deemed to have worked". I have a notice period of 6 months, whereas my employers is only required to give me 3 months notice. The normal notice for a full time employee at the firm is 3 months for a senior employee and 1 month for some one more junior. I have recently received an offer of employment elsewhere, due to commence in 1 week. My questions are: Could this contract be a zero hours contract? And if so, would be the notice period of 6 months not be applicable anymore as there is no 'requirement' for me to accept their offer of employment when my employer deems I am required? If so, what would the notice period be? Or is this contract altogether unfair? I mean in theory, the employer could choose to say that I am not required, not pay me because I am not working, and there is nothing I could do about it for at least 6 months, furthermore unable to source employment elsewhere in the meantime.
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. How soon do you wish to leave?

I am just travelling so will respond when I have a permanent signal early this evening, thanks

Customer: The sooner I could have an answer the better. This evening is ok. Sorry about the urgency. I am due to sit with the lawyer at my company tomorrow and would like to understand where I stand before I do so. Thanks.
Ben Jones :

Many thanks for your patience. Not sure if you misunderstood my earlier query but I was wondering how soon would you like to leave the current employer?

Customer:

this friday

Customer:

though preferably in mutual agreement

Ben Jones :

have you had 'usual' hours since you started working there?

Customer:

yes

Customer:

7am to 7pm on average

Customer:

but nowehere specified in my contract

Ben Jones :

How long have you done those hours for?

Customer:

since i started on june 19

Customer:

2013

Customer:

so around 9 months

Ben Jones :

ok thanks, XXXXX XXXXX to finalise my advice now

Customer:

thanks

Ben Jones :

Whilst the contract may have been described as an ‘as needed basis’, there could be an argument that the usual hours you have worked have become the implied contractual terms through custom ad practice if they have been consistently applied. This would mean they become part of the contract even if they are not written anywhere. Even if that was not the case I would not say this contract is unlawful or unfair – the employer could decide what notice periods would apply to either party even if they do not match or do not reflect what other employees may be subject to.


 


Even if this was a zero hours contract, it can still be subject to a notice period – a zero hours contract is not necessarily a casual contract where no mutuality f obligations exist, for example if you are constantly offered work and accept it then it would be implied there was a mutuality and it could not be a casual contract and it can be subject to notice periods under a clause of a contract.


 


So if there is a written contract in place and it contains a specific clause detailing the notice period an employee is supposed to give if they wanted to leave their employment, they will be contractually bound by it. Therefore, if the employee fails to honour this notice period then they will be acting in breach of contract. The employer then has the option of suing the employee to seek compensation for damages resulting from their breach. However, in reality such claims are very rarely made. This is mainly due to the costs and time involved, also the relatively small damages that can be recovered. So whilst there is no way of predicting whether the employer will take this any further or not, chances are that they will not. A more likely outcome is that the employer refuses to provide a reference in the future or if they do, it could mention that the employee had breached their contract.


 


It is therefore best to try and negotiate a mutually acceptable notice period that would suit both parties. However, if that is not possible and there is a pressing need to leave early, that is still a possibility, subject to the risks identified above.


 

Customer:

I did not work for 3 weeks in December, does that change anything?

Ben Jones :

that may help you but this is all only going to be relevant if the employer makes a claim for breach of contract against you, which is unlikely to be honest

Customer:

im doing some reading myself right now and came across a sentence saying "If the employer wishes the individual to be obliged to accept work if offered, it must say so in the contract"

Customer:

all it says is "as required"

Customer:

would this immediately imply "obligation" or would there need to be a separate sentence/clause to outline this?

Ben Jones :

no, as mentioned contractual terms can be implied through the actions of the parties, so you do not need such specific wording if over time it is clear that work was offered and readily accepted

Customer:

so basically if ive accepted in the past, this obliges for the future?

Ben Jones :

it would certainly raise an argument that such terms were implied - but this area of the law is never 100% certain]

Customer:

ok

Customer:

so i could get away with that

Customer:

also having refused work in December for 3 weeks might help this

Customer:

until January

Ben Jones :

yes, but as mentioned all of these arguments only become relevant if the employer sues you and then you have to defend the claim

Customer:

true

Customer:

im meeting with the company lawyer tomorrow, so am just trying to see where i stand

Ben Jones :

that should hopefully help with your arguments, a lot will become clearer also once you speak to them and see where they stand

Customer:

ok one last question

Customer:

you've been very helpful so far, thank you

Customer:

so assuming i breach my contract, and i begin working for my new employer

Customer:

can my old employer (with whom i have breached the contract) in any way cause me to lose my job?

Customer:

and if so, how?

Ben Jones :

well as mentioned they could contact them and state that you had left in breach of contract - that in itself would not necessarily have any effect but as you can imagine it then all depends on the new employer - some would not give it a second thought and ignore it, others may see it as an issue and consider you a risk but which way it would go, no one can predict

Customer:

ok - so they couldnt get a court injuction or something to stop me from working there altogether?

Customer:

it would be at my new employer's discretion

Customer:

if i understood that correctly

Ben Jones :

injunctions are only usually available if you have a restrictive covenant preventing you from working for someone and you have breached that

Customer:

one very very very last question

Customer:

sorry

Customer:

it's been excellent so far

Customer:

in the USA there is a provision that states:


A Casual employee may be hired to work occasional and irregular hours on an as-needed basis or to provide supplemental help during periods of unusual circumstances. Otherwise, the position should be filled as a regular or term appointment.



Casual employees may not work in excess of 1,000 hours in any 12-month period.



Termination of Employment


Due to the nature of the appointment, the employment of a Casual employee may be terminated at any time


When reaching 1,000 hours of work in a 12-month period, the Casual appointment must be terminated

Customer:

i understand there are some similarities between the USA and UK legal systems, is there anything similar here?

Customer:

the positions ive been filling is in finance, it's 7 to 7 everyday, so 60 hours a week + the occasional weekend... ive been on the job for 37 weeks now, which would equate to over >2000 hours of work

Ben Jones :

nothing similar to the above, here there is a limit of 48 hours average working week in general for employees but nothing to state the contract must b terminated after a set number of hours

Customer:

do the 48 hours also apply to zero hour contracts?

Customer:

i appreciate "zero hours" means no minimum, but does it also imply a cap?

Ben Jones :

yes, to any workers, but it is an average taken over the last 17 weeks or if less than that since the start of employment - the start date

Ben Jones :

so you can have single weeks of more than that if the average is kept below

Customer:

wow, so even with the 17 week average (taking 3 weeks out in December) I arrive at 49 hours a week

Ben Jones :

you could argue that the employer has breached the working time limits and also the implied term of trust and confidence by doing that and you could then say you are treating yourself as constructively dismissed and leave with immediate effect (it means the employer has breached the contract first, making it void, and also voiding any notice clauses in it)

Customer:

ok

Customer:

im also currently going through the referencing process with my new employer

Customer:

and have indicated that i am still employed with my old employer

Customer:

if the referencing agency contacts my current employer, what is my current employer allowed to say?

Customer:

assuming i am still employed at the time of the external referencing agency contacting my current employer

Ben Jones :

the truth basically - anything that is factually correct about your employment with them

Customer:

so only that i am employed?

Customer:

not that i am in discussions about potentially breaching the contract?

Ben Jones :

well it is the truth but usually they would only say so once it has happened as it can be misleading if you do not proceed with it

Customer:

what if i never, in whichever manner or fashion, intimated that i might do so, but it is merely them inferring so from my behaviour?

Customer:

would that still construe as the "truth"

Ben Jones :

well then it is rather risky for them to mention it, I doubt they would go into that much detail

Customer:

ok perfect

Customer:

thanks

Customer:

that's all

Customer:

you've been extremely helpful

Customer:

wait

Customer:

There is one clause in my contract that reads as follows:

Customer:

"The duration of your restricted covenant period shall be three months, and not as otherwise set out in the Handbook. Accordingly the terms of the Handbook shall be deemed to have been amended accordingly in your case"

Customer:

does that imply I cant work for anyone else?

Ben Jones :

not really, they can not just stop you from working for anyone, whatever the wording - only if you are going to encroach on legitimate business interests like by using confidential information, trade secrets, etc

Customer:

so if the business of my new employer does not conflict with the interests of my current employer there is no breach

Customer:

?

Ben Jones :

very unlikely they can prevent you from working with them, it will be a restraint of trade

Customer:

ok

Customer:

perfect

Customer:

now that's really all, i hope

Customer:

thanks a lot

Customer:

you've been a tremendous help

Customer:

i feel more reasured

Customer:

can i just ask, are you a professional solicitor?

Ben Jones :

yes of course, qualified to advise in England

Customer:

perfect

Customer:

thanks a lot

Customer:

will pay you your 28 pounds now

Customer:

have a great evening

Ben Jones :

You are most welcome. Feel free to bookmark my profile for future help:



www.justanswer.com/law/expert-ben-jones/

Customer:

will do

Customer:

how quickly are you available in general?

Customer:

just in case i may need advice again further down this week?

Ben Jones :

I am online more or less every day - if you ensure you start a question with 'for Ben Jones' then it will get directed at me

Customer:

ill keep that in mind

Customer:

thanks

Customer:

and all the best

Customer:

take care

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46149
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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