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Tribunal Over-Rules On Zero Hours Contract

A Security guard whose hours, rate of pay and location of work were sent to him by text message once a week could claim unfair dismissal when his hours were cut.

Cardinal Security reduced the hours they gave the guard work after a retail customer complained. They told him he was on a “zero hours contract” which specified that his hours and pay would only be those given by his supervisor.

After he was removed from the store, and advised to supplement his hours by using up holidays until a new store could be found, the employee resigned, and claimed constructive dismissal. This was initially rejected by the Employment Tribunal in Havant, who found he had no right to expect hours to be given to him.

But the Employment Appeal Tribunal has overturned this in the case of Borrer v Cardinal Security, and found that he should be allowed a full hearing. Although his contract did not guarantee him a minimum number of hours, the guard had worked a regular pattern of 48 hours at different locations for more than two years.

The guard’s evidence was that he would regularly receive a text message each Friday from his manager telling him where he was to attend work the following week, and what the rate of pay would be. He would also provide holiday cover for other employees.
After the store asked for him to be moved, the guard was asked to meet with his employers to discuss the reasons for this. He did not work for two weeks and was then offered reduced hours. Prior to the meeting, he resigned because his earnings had reduced.
The Tribunal initially found that the guard had no contractual entitlement to guaranteed hours of work, because his contact specified that his hours were down to his line manager, and because his location and rate varied from week to week.

But the EAT found that the evidence meant the guard did have a contractual entitlement to work 48 hours each week, even though the pay and location would vary.

The case is a useful reminder to employers and employees on the factors that a Tribunal will take into account in assessing whether a contract is truly “zero hours” or whether its operation in practice means it should be interpreted in a different way.

The Glasgow Law Practice gives advice to employers and employees on contractual and employment law matters. Contact ss@theglasgowlawpractice.co.uk