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Ask the expert: Do I need to be paid for training as part of a zero-hours contract?

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A reader has been offered a job on a zero-hours contract. They ask whether they should be paid for attending a training course and whether the firm is allowed to withhold pay if they don’t pass.

The reader is happy to accept a zero-hours contract but is unsure whether what is being offered is legal.

Latest statistics from the Office for National Statistics revealed that in January to March 2022, there were over one million workers on a zero-hours contract, representing 3% of people in employment.

This figure has fluctuated over the course of the pandemic, but is up from the 974,000 recorded between October and December 2019, pre Covid-19.

While their rights have been strengthened, confusion remains over what these workers are entitled to and what obligations are on the firms.

As such, a reader from Hertfordshire asked whether they need to be paid a certain amount or whether they’re entitled to expenses when attending a residential training course. Further, they were told that pay would only be conditional on passing the training course.

Stephen Simpson, principal employment law editor at XpertHR, replies..

Individuals who have the legal status of ‘worker’ – which includes those working under a zero-hours arrangement – are entitled to the National Minimum Wage for hours during which they are working.

Relevant training counts towards this. Any worker – including those on a zero-hours contract – should be paid at least the minimum wage for the hours during which they are carrying out this training.

If the training is taking place away from their usual place of work, this makes no difference – the location where the individual is located does not normally affect the purposes of National Minimum Wage entitlement. Employees still need to be paid for the hours during which they are carrying out the training.

However, there is no legal entitlement to be paid expenses. The extent of an employer’s responsibility for paying a worker’s additional expenses will depend on the wording of the employer’s expenses policy. Some workers will also have expenses clauses in their contracts, so employees should check these to see if they are entitled to be paid travel and subsistence expenses in these circumstances.

The documentation may include a requirement for the expenses to be ‘reasonable’, or perhaps ‘necessary to meet business needs’. It is therefore likely that the employer would be required to pay employees’ reasonable travel and subsistence expenses if the worker is being asked to travel to somewhere other than their usual place of work to do training.

On whether the firm is able to state pay is conditional on passing a training course, Simpson says…

If the individual has signed a zero-hours contract and the employer has included training as part of their work, they have to be paid for that work, even if their performance is deficient. There’s no mechanism in UK employment law that allows an employer to refuse retrospectively to pay a worker based on poor performance. However, the advantage for the employer of a zero-hours contract is that it doesn’t have to offer the individual any further work if they don’t want to and that person has no legal recourse.

The situation is slightly different if it is an unpaid trial period at the recruitment stage to decide whether to engage the individual in the first place before they’ve signed a contract. Perhaps surprisingly, there’s nothing in UK employment law to prevent a short unpaid trial period to assess if an individual can do the work. However, the longer a trial period continues, the more likely it is that it results in a contract to provide work and the obligation to pay the minimum wage.

It is not legally binding, but there is official government guidance on unpaid trial periods that states that an unpaid ‘work trial’ genuinely for recruitment purposes that is needed to test the individual’s ability to carry out the job offered is permitted. The guidance suggests that this could last for one day but that in most cases if it lasts longer than that, the employer can expect a visit from HMRC enforcement officers if it does not pay the National Minimum Wage.

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