The Jersey Employment and Discrimination Tribunal (the JEDT) recently considered the requirements that need to be present to form an employment contract and subsequently a zero hours contract.

In Mr J F C De Sousa v States Employment Board, the JEDT stated that the English Courts had developed and introduced the concept of an “irreducible minimum” of elements which must be present in a contract for a contract of service to exist.

These basic principles are:

1. control,
2. mutuality of obligation (the obligation to provide and accept work and/or pay) and
3. personal performance.

Therefore to specifically create a zero hour’s contract, it must be possible to demonstrate a lack of:

1. control,
2. mutuality of obligation and
3. personal performance.

This represents a different approach to that previously advanced by the JEDT.

Before advertising for a role, employers should carefully consider what type of relationship they intend to commence with the individual.

Both parties should be clear at the outset whether it is intended for that person to be treated as an employee or as a zero hours worker to ensure the contractual documentation matches the intention between the parties.