Zero hour contracts and monitoring holiday pay/entitlement

Q. Is it okay to pay people who are on zero-hour contracts for holidays, but not to monitor when or how much time they take off?

Scott: It’s not. You’ve got to monitor.

Seamus: Certainly, if any of these decisions of the employer were ever to be challenged, when you end up in a tribunal, the tribunal will look for evidence and it’s important that you are keeping records, that you are monitoring things in terms of holidays or for zero-hour contractors, when they’re working and when they’re not working.

Again, it’s really about the fundamentals of the relationship between the employer and employee. What is both’s understanding of what is happening and is it that the employee can simply stay on a zero-hour contract and available to work 30 hours and the employer to hand you 30 hours to work and that’s it or is there flexibility that’s built in there both ways? So, certainly it is about monitoring.

I just want to cover off on the point that Dudley is obviously a decision that has been made in the EAT in England. Here, based in Belfast, we have our own tribunal system. The question right now, I think, is whether or not the decision in Dudley will apply in Northern Ireland. Certainly, there is room in our process for our tribunals to look to make different decisions.

As you know, decisions in the tribunals here in Northern Ireland can only be appealed to the Court of Appeal here because there’s no employment appeal tribunal in Northern Ireland, but I think it’s very likely that the employment tribunal will have certainly cognizance to that decision and they will take it into the account.

If I’m advising my clients, I wouldn’t be saying to my clients take a risk here and don’t pay additional holidays on the basis of voluntary over time because if it’s challenged, my anticipation would be that the tribunals here will follow that. If the tribunals didn’t, I think it’s a likely Court of Appeal challenge as well, which of course is an overarching court here in Northern Ireland and would certainly take precedence over the EAT in England.