Zero‑Hours Contracts and Discrimination Protection

Zero‑hours contracts are a widespread form of work arrangement in the UK, offering flexibility for both employers and individuals. Under such contracts, an employer does not guarantee a minimum number of working hours, and the individual is typically free to accept or refuse work when offered. However, despite this flexibility, individuals on zero‑hours contracts are not without legal rights. They remain protected against workplace discrimination and have access to statutory protections depending on their employment status as either a worker or an employee. This article explains how discrimination protection operates for zero‑hours workers, the relevant legal framework, practical examples, time limits for claims, and the steps individuals and employers can take to manage discrimination risks.

What Is a Zero‑Hours Contract?

A zero‑hours contract is not a distinct legal category but a type of casual work agreement under which the employer does not commit to providing any minimum hours of work, and the individual is not obliged to accept every work offer. The term covers a range of arrangements where work is offered on an “as and when” basis.

Despite the absence of guaranteed hours, a person engaged under a zero‑hours contract can be classified in law as either:

• a worker; or
• an employee.

This classification determines what legal rights apply, including discrimination protection. Both workers and employees under zero‑hours contracts benefit from protection against unlawful discrimination based on protected characteristics such as age, sex, race, disability, religion, sexual orientation and others under the Equality Act 2010.

Legal Basis for Discrimination Protection

Equality Act 2010: Protected Characteristics

The Equality Act 2010 prohibits discriminatory treatment in the workplace because of protected characteristics. This protection extends to employees and workers alike, regardless of whether their contract guarantees hours. Claims for discrimination due to age, sex, disability or other protected characteristics can be made to an Employment Tribunal.

Individuals on zero‑hours contracts can bring claims for direct discrimination, indirect discrimination, harassment and victimisation if they are treated unfavourably for a discriminatory reason. Claims may also arise if they are treated less favourably for asserting their statutory rights (for example, complaining about discriminatory conduct).

Status Matters but Not for Discrimination Rights

The legal status of the individual (worker or employee) affects some employment rights, but protection from discrimination applies to both categories. A person classified as a worker on a zero‑hours contract is specifically entitled to protection from discrimination under statutory employment rights.

How Discrimination Can Arise on Zero‑Hours Contracts

Examples of Unlawful Treatment

Discrimination claims can arise in a range of scenarios affecting zero‑hours workers. Examples include:

• Allocation of Work: If a zero‑hours worker is offered fewer shifts or lower‑paid assignments because of a protected characteristic, such treatment might amount to discrimination.
• Detriment for Asserting Rights: An employer must not put a worker at a disadvantage (a detriment, such as losing shifts or favourable working times) because they have asserted statutory rights or complained about discrimination.
• Refusal of Training or Development: Denying access to training opportunities on discriminatory grounds could be unlawful if comparable workers without the protected characteristic are treated differently.
• Harassment or Bullying Linked to Protected Traits: Unwanted conduct creating a hostile environment because of a protected characteristic may support a harassment claim.

In all of these examples, a tribunal will assess whether the unfavourable treatment occurred because of the protected characteristic, requiring evidence showing a nexus between the treatment and the discriminatory factor.

Procedural Aspects: Time Limits and Tribunal Claims

Acas Early Conciliation

Before presenting most discrimination claims to an Employment Tribunal, individuals must notify Acas and obtain an Early Conciliation Certificate. This process allows parties to explore settlement without formal litigation.

Time Limits

For discrimination claims, the claim form (ET1) must normally be presented to the tribunal within three months less one day from the act complained of. For continuous discriminatory conduct, the deadline may run from the last act in the series, but strict compliance is important to avoid claims being dismissed as out of time.

Compensation and Remedies

If a tribunal upholds a discrimination claim, it may award compensation for injury to feelings, financial loss (for example, lost earnings if discriminatory practices limited hours), and other relevant impacts. The level of award depends on case facts and legal guidance.

Employment Status and Its Impact

Employee vs Worker

Zero‑hours individuals may be classified as either an employee or a worker. The distinction affects certain legal protections:

• Employees have access to the full suite of employment rights, including unfair dismissal protections (after qualifying service) and statutory notice requirements.
• Workers have a narrower set of rights, focusing on basic protections such as minimum wage, rest breaks, holiday pay and discrimination protection.

Both employees and workers are protected from discrimination, but only employees may bring claims for unfair dismissal (subject to qualifying service). Workers may still bring a claim if they experience a detriment for asserting rights or discriminatory treatment, even if they cannot claim unfair dismissal in the strict sense.

Employment Status Tests

Employment status is determined by the reality of the working arrangement rather than contract labels. Factors such as the degree of control, mutuality of obligation and integration into the business are relevant. However, regardless of status, discrimination protection is available to both categories.

Exclusivity and Working Elsewhere

Regulations made in 2022 render exclusivity clauses in zero‑hours contracts unenforceable. These clauses purport to prevent a worker from taking other employment, which would otherwise restrict their income‑earning opportunities. Such clauses cannot lawfully be enforced against a zero‑hours worker.

If a zero‑hours worker suffers a detriment, cancellation of shifts, or dismissal for working elsewhere, they may have grounds for a tribunal claim, including claims linked to discriminatory treatment if the reason for the detriment is a protected characteristic.

Practical Steps for Zero‑Hours Workers

Keep Clear Records

Workers should keep detailed records of shifts offered, hours refused or accepted, communications with the employer, and any interactions where discriminatory conduct is alleged. These records can be crucial in tribunal proceedings.

Identify Comparators

In discrimination claims, the worker often needs to identify a comparator - someone in a similar position without the protected characteristic who was treated more favourably. For zero‑hours workers, comparators can include colleagues on different contracts or arrangements if the circumstances are comparable. Case law has addressed comparator issues in similar contexts, clarifying that zero‑hours workers can compare themselves with permanent colleagues where appropriate.

Raise Issues Internally First

Workers are encouraged to raise discrimination concerns through internal grievance procedures before resorting to formal tribunal claims. This can sometimes facilitate resolution and provide documented evidence of efforts to address the issue.

Practical Guidance for Employers

Fair Allocation of Work

Employers should ensure that the process for offering and allocating work is transparent, objective and free from discriminatory bias. Criteria such as availability or seniority should be applied consistently and without reference to protected characteristics.

Training and Policies

Clear workplace policies on discrimination, diversity and equality should include zero‑hours workers. Regular training for managers and supervisors can reduce the risk of unconscious bias or discriminatory decisions when scheduling work.

Document Decision‑Making

Employers should document reasons for decisions affecting zero‑hours workers, such as refusal of shift requests, changes to schedules and development opportunities. This documentation can be vital evidence if a discrimination claim arises.

Common Questions

Can zero‑hours workers claim discrimination even if hours are irregular?
Yes. The irregular nature of hours does not prevent a zero‑hours worker from bringing a discrimination claim if unfavourable treatment is linked to a protected characteristic.

What if a worker refuses shifts and then suffers detriment?
If detriment follows refusal of shifts, and if there is evidence the reason is discriminatory (for example, based on age or pregnancy), a tribunal may consider whether unlawful discrimination occurred.

Are employers required to offer equal training opportunities to zero‑hours workers?
Yes. Zero‑hours workers who are workers or employees have protection from less favourable treatment in training and development opportunities where this is linked to a protected characteristic.

Key Takeaways

Individuals engaged under zero‑hours contracts in England and Wales retain protection against workplace discrimination under the Equality Act 2010. Both workers and employees on zero‑hours contracts can bring discrimination claims to an Employment Tribunal where they are treated unfavourably because of a protected characteristic. Employment status determines some rights but does not affect basic protection from discrimination. Employers must administer work allocation, training opportunities and contractual arrangements fairly and without discriminatory bias. Workers should maintain records, understand their status, and consider formal grievance steps before pursuing tribunal claims. Clear policies and fair processes help protect the rights of zero‑hours workers and reduce legal risk for employers.