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Zero Hour Uncertainty

In past issues we have considered the legal-commercial rationale for implementing ‘zero hours’ contracts for part or all of a workforce – those contracts where there is no obligation either for the employer to provide work, nor for the worker to accept the same.

A point not previously touched upon and recently brought to the fore via case law, is the concept of an employment relationship considered by the employer to be zero hours, although not expressly labelled as such and that over time ‘crystallises’ into something much more substantial in terms of the rights capable of being asserted by the worker.

The case of Borrer v Cardinal Security Ltd demonstrates that employers utilising zero hour contracts may over time find that the contractual arrangement between them and the relevant worker can evolve, meaning the employer is left on the back foot when issues arise.

Mr Borrer was employed by the security firm for over four years, spending the lion’s share of that time working at one supermarket doing the same role on the same hours. While Mr Borrer’s contract was silent as to his hours, in practice he consistently worked 48 hours per week.

In his latter days of working for Cardinal, Mr Borrer moved to another nearby supermarket where unfortunately the incumbent manager was unhappy with his work securing the store. Consequently Cardinal offered Mr Borrer reduced hours spread over two or three days each week at another store. Mr Borrer rejected these new hours and the zero hours justification given by Cardinal and resigned claiming constructive dismissal.

The original Employment Tribunal (“ET”) took the view that as Mr Borrer’s hours were provided to him via text message immediately preceding the week he was due to work, that there was insufficient evidence to hold that he was working a fixed number of 48 hours each week. As a result of this the ET rejected Mr Borrer’s claims for constructive dismissal, unlawful deduction from wages and notice pay, on the basis that his hours were not guaranteed and so a variation of these would not amount to a breach, entitling him to resign in response to such breach; Mr Borrer appealed to the Employment Appeals Tribunal (“EAT”).

The EAT took a different view and found that Mr Borrer had indeed been contractually entitled to work his claimed 48 hours per week. It was concluded that the points made by the ET, that Mr Borrer’s hours were specified by his Manager and texted to him each week, neither individually or collectively lead to the conclusion that Mr Borrer had no guaranteed hours.

The EAT considered that the “true agreement between the parties” was that Mr Borrer was consistently provided with and consistently accepted these hours each week, such to the point that they formed a term of his contract via extended custom and practice.

The case has now been remitted to the original ET to decide whether or not there was a constructive dismissal and if so whether that dismissal unfair. With Mr Borrer’s hours now confirmed as being contractual, one would expect him to obtain the judgment he originally sought.

Conclusion

Following on from the conclusion of this case, it is important and wise that all employers ensure that if they do plan to have employees on zero hours contracts that these contracts are clear and specify this. It would be best practice to do this even if such contracts are common within a sector. The key failing of Cardinal above, was that the contract itself did not use the specific term of ‘zero hours’.

If you need advice on dealing with a ‘zero hour contract’ contact me for a free consultation on 0113 350 4030 or at samira.cakali@scesolicitors.co.uk


Samira Cakali

Samira Cakali is a pragmatic and approachable solicitor advocate with extensive contentious and non-contentious experience in the fields of employment law as well as civil litigation, within a range of commercial businesses from SME’s to multinationals as well as senior executives.

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