Sick Pay for Employee under Zero-Hours Contract

A female employee who worked under a zero-hours contract and who, after more than a year of service became ill, was entitled sick pay on the basis of the average number of hours worked during the preceding twelve months.

On 17 February 2020, a female employee started working as a driver at a transport company for floricultural products, such as flowers and plants, under a one year zero-hours contract. Then there were discussions on continuation of the employment contract, but no agreement could be reached on the number of working hours. Nevertheless, the employee continued to work. She worked for even more hours than she did before.
Next, on 8 April 2021, the employee fell ill and a dispute arose about the number of hours for which the employer should pay he the sick pay. The employee claimed wages for the average number of hours she had worked in the three months period prior to her first day of illness. The employer stated that this period was not representative. He pointed out that work in the transport of floricultural products is characterized by peaks and troughs. He also stated that he had increased the employee’s number of working hours, because she needed more income in order to be able to obtain a mortgage for the purchase of a house after her divorce.
He argued that the amount of the sick pay should be calculated on the basis of the average number of hours worked over the period of a full year. This would be the basis of what the employee would be entitled to in the offer for a fixed number of hours, which is mandatory after twelve months, and under the applicable CLA.
The Sub-district Court shared the employer's argument. The employee rightly invoked the presumption regarding the number of working hours and on that basis also rightly claimed sick pay based on the average number of hours worked over a period of three months. The employer, however, could provide evidence to the contrary and invoking the CLA provision is appropriate for providing the evidence to the contrary. Legislative history also shows that a period of more than three months may be appropriate in the event of seasonal fluctuations. According to the Sub-district Court, the fact that the employer had assigned extra work to the employee in connection with her private circumstances was also an argument to derogate from assuming the average number of hours worked over a period of three months.

Zero-hour contracts only have the desired effect (namely that wages only have to be paid if the work has also been done) during the first six months. Thereafter, the employer is also obliged to pay wages if there is no work, at least if the absence of work is the result of circumstances that are beyond the employee's scope of control. In the event of illness, wages payment should in any case -and in principle for 70%- be continued for up to 104 weeks.
The legal presumption regarding the number of working hours then helps the employee to determine the amount of the wage claim, but the employer may provide evidence to the contrary. Despite the fact that on-call contracts have lost their intended effect after the first six months, in practice they are often continued long afterwards.
After one year, the employee's position becomes even stronger.
If the employer fails to make the mandatory offer for a fixed amount of work, which should be equivalent to the average number of hours worked in the preceding twelve months, the employee will be entitled to wages for that average number of hours. It is not even necessary that the employee had to make himself available to perform the work.
In the above case, the employee based her wage claim on the hours worked in the last three months prior to her labour incapacity, but she could also have chosen any other three-month period. The employee could also have requested continued payment of wages after six months if she had not been able to work due to circumstances beyond her scope of control. It is quite conceivable that the employee's wage claim would have been -partially- granted if she would have done so.