Football clubs should think carefully about zero hours contractsAndrew MacDonald
With the 2013/2014 football season now well underway, football clubs up and down the land are looking to steal a march on their rivals on the pitch and put points on the board. Much of that is down to their players and management staff.
But what about the other lesser known, but nonetheless important, staff engaged by clubs? Think about the match day staff: including turnstile operators, stewards, ball-boy supervisors, mascots and hospitality / catering staff – as well as backroom staff, including sports scientists.
These 'key players' are usually engaged as casual workers, often under zero hours contracts. This is a type of contract whereby workers agree to be available for work but with no guaranteed hours. Such contracts are used where flexibility is needed to meet short-term staffing needs without taking on the obligations associated with contracts of employment.
Under these contracts, which are increasingly being used in the retail and hospitality industries (most notably in recent times by Sports Direct, which is believed to engage 20,000 of its 23,000-strong workforce on this basis), individual workers agree to be available for work 'as and when required' but have no guaranteed hours or times of work and are paid only for work done. This gives the sports club a pool of people who are 'on call' and can be used only as and when the need arises – which will depend when and how often matches take place, for example.
It is the flexibility of zero hours contracts and other casual working arrangements which is the major draw for football and other sports clubs. Clubs should nonetheless be mindful of the negative aspects and risks associated with engaging workers in this way (discussed below).
Clubs will achieve cost savings by not having to pay workers where there is no demand or need for them – which will be particularly attractive to smaller clubs whose 'bottom line' is all important. Even for the country's biggest football clubs, competing in the widest range of competitions, they will still only have a finite number of home matchdays – meaning it is a potentially useful tool to all clubs, regardless of the level at which they compete and operate.
Another advantage of engaging staff under zero hours contracts is that clubs will develop a pool or network of individuals who can be called upon on an 'as needed' basis, who will develop the skills and qualities associated with the role and form part of a reliable workforce for the club. This should assist clubs in avoiding significant recruitment costs, including paying recruitment agency 'temp' fees.
Whilst zero hours contracts present a useful tool to the employer club as a contract for flexible work, the individual workers can also benefit from this flexibility, allowing them to work where commitments might otherwise mean they would be unable. For example, this method of working might be particularly attractive for those with childcare commitments, who can make their work fit accordingly. It applies equally to students, who may wish to have a match day hospitality role, for example, which does not adversely impact their studies. Those who have retired from full time employment but wish to supplement their retirement income without being unduly restricted under an employment contract may also benefit.
For clubs who engage staff under these contracts, the principal issue is that of employment status - are those working under a zero hours contract "employees" or "workers"?
This is a critical consideration as those with "employee" status are afforded a number of important legal rights that "workers" are not, such as the right not to be unfairly dismissed, family friendly rights (including maternity rights) and the right to receive a statutory redundancy payment.
Clubs must remember that even if their staff are genuinely "workers", they still have rights, including to the National Minimum Wage (which increased on 1 October 2013 to £6.31 per hour for workers aged 21 and over) and to protection from discrimination.
Courts and tribunals will 'look behind' the contractual documentation to assess the true nature of the working relationship between the parties. The contract itself is only part of the story. If that contract is ultimately a sham, intended only to circumvent the rights and responsibilities of the parties associated with the reality of the arrangement, a contract of employment is likely to be found.
This can create uncertainty for clubs in implementing these working arrangements – who should ensure that use of zero hours contracts is legitimate.
The flip side of the flexibility that zero hours contracts presents is that clubs have less control over these staff when compared with their permanent employees. The sporadic nature of the involvement of zero hours staff within a football or other sports club dictates that the club is unlikely to be able to mould these workers in the same way.
Whilst the flexibility of zero hours contracts and other casual working arrangements might appeal to (and be in the best interests of) a range of sports clubs, careful thought should be given to the nature of the role in question and the working practice should be reviewed on a regular basis. Whilst the perception is that casual workers have very few rights, this is a simplistic and naive outlook. If in practice the working relationship between the parties demonstrates a contract of service, clubs could face costly and time consuming litigation from aggrieved "employees", as well as enforcement action from HM Revenue & Customs if National Minimum Wage obligations are not met.
If the nature of the role lends itself to operating a zero hours contract, there is no question that this can be of real benefit to the club. The legitimacy of such a working practice is, however, all-important.
The amounts earned by casual workers may pale into insignificance when compared to players and management but clubs should be aware of the risks associated with not acting fairly and lawfully towards such staff. Clubs should also bear in mind that these individuals are normally fans of the team and part of the fabric of the football club.
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About the Author
Andrew is a Senior Solicitor in the Employment Team at Mills & Reeve LLP. Much of Andrew’s work focuses on the sports sector. He advises professional football clubs, players and agents on contractual and employment matters, including players’ contracts and disciplinary proceedings.