Should zero hours workers be included in a consultation which may result in a change to the terms and conditions?

Should zero hour workers be included in a consultation where an employer needs to restructure the business and as a result will have to change terms and conditions of the employees employment contract with regards to sick policy and maternity policy?

If the changes to terms and conditions are as a result of a reorganisation which may result in redundancy dismissals, then an employer's obligations to consult in this situation in order to avoid making unfair dismissals applies to employees rather than workers, as defined in section 295 of TULRCA.

However, while the collective consultation obligations under TULRCA only apply to employees, the ECJ has held that the EU Collective Redundancies Directive applies to workers, and the definition of "worker" cannot be restricted by the definition given in domestic legislation (Balkaya v Kiesel Abbruch und Recycling Technik GmbH C-229/14).  Therefore there is an argument to be made that potentially the duty to consult applies to the dismissal of workers although we are not aware of any UK case law on this point.

The first thing to establish is whether the individuals working under the zero hours contracts are employees or workers.  This would require careful analysis of the contractual terms as well as consideration of a number of factors to establish status.  When considering the status of casual workers (including zero hours workers), a tribunal will look beyond the express terms of the contract at the reality of the relationship and the true agreement between the parties. If an employer is unsure of the status of the individuals, and wishes to minimise risk, it may choose to include them in the consultation in any event.