Request for law drafting: Exclusivity clauses in zero hours contracts

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A decision made on 1 February 2022

Decision Reference: MD-SOSEC-2022-22

Public

Subject: Exclusivity clauses in zero hours contracts – request for law drafting

Report Title: Exclusivity clauses in zero hours contracts

Public

Decision(s): The Minister decided to ask for law drafting to implement the decision of the States Assembly, taken on 12 May 2021, to request the Minister for Social Security to bring forward for debate by March 2022 legislation to implement a ban on exclusivity clauses.

Resource Implications: There are no financial or manpower implications.

Signature:

Signed By: Minister for Social Security

Date Signed:

Date of Decision (If different from Date Signed):

Request for law drafting: Exclusivity clauses in zero hours contracts

WRITTEN REPORT RE EXCLUSIVITY CLAUSES IN ZERO HOURS CONTRACTS

Introduction

On 12 May 2021 the States Assembly agreed a package of measures relating to the operation of zero hours contracts in Jersey (P.32/2021 as amended). One element is an agreement to request the Minister for Social Security to bring forward for debate legislation prohibiting the use of so-called “exclusivity clauses” in zero-hours contracts.

The States’ agreement of May 2021 reflects an earlier agreement in November 2016 (P.92/2016), when a decision was taken that exclusivity clauses in zero-hours contracts should be prohibited.

The Minister for Social Security has now asked for law drafting to insert an Article into the Employment (Jersey) Law 2003 to make an exclusivity clause in a zero-hours contract unenforceable, and has lodged with this Written Report a Ministerial Decision to that effect.

Background

It is now the settled view in Jersey – in the light of several decisions of the Jersey Employment Tribunal – that those on zero hours contracts are “employees” for the purposes of the Employment Law. Employees on zero hours contracts are entitled to the same “day one” rights as other employees and to further protections under the Law after a period of time.

As the Report to the P.32/2021 amendment points out, this is a different situation to that which exists in the UK, where separate levels of protection have been created for “employees” and “workers”. “Workers” enjoy fewer protections and those on zero-hours contracts in the UK generally fall into this group.

In Jersey, rights for those employees on zero-hours contracts have been strengthened over the years. The latest development in the law in 2018 entitles any employee, including those working under the terms of a zero-hours contract, to request a change to their terms and conditions, including the right to ask to change a zero-hours contract to a fixed hours contract.

The ban on exclusivity clauses

The Minister for Social Security will shortly be issuing directions to the Employment Forum about the scope of the review it will undertake into the operation of zero-hours contracts in Jersey and into employee labour protections more generally, as agreed by the Assembly in P.32/2021.

As a first step, the Minister is asking for law drafting to reflect the will of the Assembly to ban the use of exclusivity clauses in contractual agreements between employer and employee. This will be done by inserting a new Article into the Employment (Jersey) Law to make the use of an exclusivity clause unenforceable.

The Assembly has made it clear that any attempt by an employer to prevent an employee on a zero-hours contract from seeking or taking up employment on similar terms with another employer at the same time (which is what an exclusivity clause is designed to do) is unacceptable, and the Minister agrees.

Once law drafting is complete, the Minister will lodge the amendment for debate before the end of this Parliamentary term.

Financial and manpower implications

There are none arising from this Report.