Exclusivity clauses, which restrict staff from working with multiple employers, have been void and unenforceable in zero-hours contracts (the ‘ban’) since 2015. However, this left a gap in protection for low-paid workers who were guaranteed at least some hours work each week. The Exclusivity Terms for Zero Hours Workers (Unenforceability and Redress) Regulations 2022, which come into force on 5 December 2022, seek to plug this gap in protection. The new regulations extend the ban of exclusivity clauses to low-paid workers (ie those whose net average weekly wages fall below or equivalent to the lower earnings limit, which is currently £123 a week). The net average weekly wages are calculated by: 

• subtracting all deductions of whatever nature from the average weekly wages
• dividing by 52 the total pay to which the worker is entitled under that contract in respect of a period of 52 weeks where the contract is permanent
• dividing the total pay to which the worker is entitled under their contract by the number of weeks during which their contract is expected to continue if the contract is non-permanent

The regulations also make it automatically unfair for employees to be dismissed for a reason relating to a breach of an exclusivity term and create a right for workers not to be subjected to a detriment for a reason relating to a breach of an exclusivity term. Affected employees will not need two years’ service to bring an unfair dismissal claim.

In practical terms, the extended ‘ban’ means that: 

• any exclusivity clauses in affected pre-existing contracts are now void and unenforceable 
• the addition of an exclusivity clause in any new contract will also be void and unenforceable, unless the worker’s average net weekly earnings will fall above the lower earnings limit
• employers should not subject an affected worker to detriment or dismissal for breaching a void exclusivity clause