Advice Request re Constructive Dismissal on a Zero Hour Contract

just_this_girl

Dear MSEs,

I'm posting to ask for advice as to my rights as a zero-hour contract worker, and whether to attempt making a claim against my former employer.

I worked for the past two and a half years part-time as a waitress in a restaurant in Northern Ireland. My written contract stated that it was a zero hours contract, and that I could be moved to work in another premises (the company owns several) at any time. The agreement I made with the then manager, which was honoured by two succeeding managers was that I would normally work 3 nights a week. This continued for two and a half years. I worked on average 16.5 hours a week. (I was never asked to work in any other premises during that time).

Four weeks ago I returned from holiday only to discover that I had been moved to another premises, and only given 2 shifts. I attended work in that premises and informed the manager of my misgivings - I had not been consulted; The location was not convenient; I did not believe the hours & pay would be the same [my pay included tips on top of minimum wage]. I asked if I could return to my old place of work. I also asked why I had been singled out. The jist of her reply was that as a zero-hour-contract worker I had no rights. I requested more shifts or to work an extra shift in another restaurant to make up my hours. This was refused. That week, the other part-timers in my old place of work worked more hours than usual. I was sent home on both my shifts after 3 hours.

In addition, everything about my role but my job title changed. Instead of being a section waitress taking orders, looking after customers, handling cash etc, I was told to stay behind the bar and make bar snacks to order. I was not allowed interact with customers. I was not allowed make use of my significant experience and skills.

I immediately applied for other jobs, found one, resigned, and worked a weeks notice, again working only 6 hours that week. My net pay for the last two weeks at my old job, and my first week at the new one (training week) was as little as 25% of average.

I had contacted the CAB in the first instance, but was advised that on a zero hour contract I had no right to expect the hours I had been working to continue. Further reading, however, suggests that I may have had an implicit contract to work 3 shifts a week, seeing as I had done so for so long. I also believe my employer treated me unfairly by moving me (and me alone) and by changing my role - though they pretended not to do this - and my working conditions. Therefore they breached the contract, and they forced me to seek alternative employment as I could not survive on my new wage.

Am I correct in this assessment? If I were to make a claim through the industrial tribunal against my former employer, would I have a strong case? Would I have to pay to do this?

Thank you in advance for any advice offered.

JTG

Undervalued

The whole concept of unfair dismissal (let along constructive unfair dismissal) is meaningless with a zero hour contract.

They are not obliged to give you any work so there is no provable loss.

In any case most people on zero hour contracts are technically workers, not employees, and workers cannot generally claim unfair dismissal in the first place.

Guest101

just_this_girl wrote: »

Dear MSEs,

I'm posting to ask for advice as to my rights as a zero-hour contract worker, and whether to attempt making a claim against my former employer.

I worked for the past two and a half years part-time as a waitress in a restaurant in Northern Ireland. My written contract stated that it was a zero hours contract, and that I could be moved to work in another premises (the company owns several) at any time. The agreement I made with the then manager, which was honoured by two succeeding managers was that I would normally work 3 nights a week. This continued for two and a half years. I worked on average 16.5 hours a week. (I was never asked to work in any other premises during that time).

Four weeks ago I returned from holiday only to discover that I had been moved to another premises, and only given 2 shifts. I attended work in that premises and informed the manager of my misgivings - I had not been consulted; The location was not convenient; I did not believe the hours & pay would be the same [my pay included tips on top of minimum wage]. I asked if I could return to my old place of work. I also asked why I had been singled out. The jist of her reply was that as a zero-hour-contract worker I had no rights. I requested more shifts or to work an extra shift in another restaurant to make up my hours. This was refused. That week, the other part-timers in my old place of work worked more hours than usual. I was sent home on both my shifts after 3 hours.

In addition, everything about my role but my job title changed. Instead of being a section waitress taking orders, looking after customers, handling cash etc, I was told to stay behind the bar and make bar snacks to order. I was not allowed interact with customers. I was not allowed make use of my significant experience and skills.

I immediately applied for other jobs, found one, resigned, and worked a weeks notice, again working only 6 hours that week. My net pay for the last two weeks at my old job, and my first week at the new one (training week) was as little as 25% of average.

I had contacted the CAB in the first instance, but was advised that on a zero hour contract I had no right to expect the hours I had been working to continue. Further reading, however, suggests that I may have had an implicit contract to work 3 shifts a week, seeing as I had done so for so long. I also believe my employer treated me unfairly by moving me (and me alone) and by changing my role - though they pretended not to do this - and my working conditions. Therefore they breached the contract, and they forced me to seek alternative employment as I could not survive on my new wage.

Am I correct in this assessment? If I were to make a claim through the industrial tribunal against my former employer, would I have a strong case? Would I have to pay to do this?

Thank you in advance for any advice offered.

JTG

You cant have an implicit contract when you have an actual contract......


Zero Hours workers - no requirement to attend work and no requirement for employer to provide work


(now the only caveat is Northern Ireland... sometimes varies from E&W)

just_this_girl

Dear Undervalued & Guest 101,

Thank you for your replies.

I believe you may both be in error, however. This is due to information I found on the Citizens' Advice (NI) website [FONT=&quot][FONT=&quot]([/FONT]I'm n[FONT=&quot]ot allowed post the link, but I'll quote the relevant parts).[/FONT][/FONT]

[FONT=&quot]It states on the website that "[FONT=&quot]a[/FONT] contract of employment will usually be made up of two types of contractual terms". These are [/FONT]express terms (terms written in the contract, for example), and [FONT=&quot]implied terms, which [/FONT][FONT=&quot] include "terms implied by custom and practice".[/FONT]

[FONT=&quot]Under the heading [/FONT][FONT=&quot]"[/FONT][FONT=&quot]Contracts without specific working hours", it also states the following:[/FONT]
[FONT=&quot]"If your contract states that you have no set hours of work and that you must be available to work, but what actually happens is that you work the same number of hours each day/week, then it may become an implied term of your contract ... that you do have a set number of hours to work each day/week. If you are willing to work this number of hours but are given no work to do you may be entitled to be paid your normal wage for these hours.[/FONT]

[FONT=&quot]This is why I believe my normal working hours had become an implied term of my contract.[/FONT]

[FONT=&quot]It also seems that I was indeed an employee[/FONT]. [FONT=&quot](My employer controlled the work to be done and provided the work; I was paid at regular intervals;[/FONT] [FONT=&quot]If I was off sick, my employer had to replace me. My employer was responsible for supplying main tools and machinery and materials.) [/FONT]
[FONT=&quot][These guidelines come from the section “How to tell if someone is an employee or not”, same page][/FONT]

Considering the above, could anyone advise me further?
Thanks to anyone who can help :-)
JTG

[FONT=&quot]
[/FONT]

marliepanda

"And must be available to work"

There is no requirement for someone on a zero hour contract to be available for work.

Undervalued

just_this_girl wrote: »

Dear Undervalued & Guest 101,

Thank you for your replies.

I believe you may both be in error, however. This is due to information I found on the Citizens' Advice (NI) website [FONT=&quot][FONT=&quot]([/FONT]I'm n[FONT=&quot]ot allowed post the link, but I'll quote the relevant parts).[/FONT][/FONT]

[FONT=&quot]It states on the website that "[FONT=&quot]a[/FONT] contract of employment will usually be made up of two types of contractual terms". These are [/FONT]express terms (terms written in the contract, for example), and [FONT=&quot]implied terms, which [/FONT][FONT=&quot] include "terms implied by custom and practice".[/FONT]

[FONT=&quot]Under the heading [/FONT][FONT=&quot]"[/FONT][FONT=&quot]Contracts without specific working hours", it also states the following:[/FONT]
[FONT=&quot]"If your contract states that you have no set hours of work and that you must be available to work, but what actually happens is that you work the same number of hours each day/week, then it may become an implied term of your contract ... that you do have a set number of hours to work each day/week. If you are willing to work this number of hours but are given no work to do you may be entitled to be paid your normal wage for these hours.[/FONT]

[FONT=&quot]This is why I believe my normal working hours had become an implied term of my contract.[/FONT]

[FONT=&quot]It also seems that I was indeed an employee[/FONT]. [FONT=&quot](My employer controlled the work to be done and provided the work; I was paid at regular intervals;[/FONT] [FONT=&quot]If I was off sick, my employer had to replace me. My employer was responsible for supplying main tools and machinery and materials.) [/FONT]
[FONT=&quot][These guidelines come from the section “How to tell if someone is an employee or not”, same page][/FONT]

Considering the above, could anyone advise me further?
Thanks to anyone who can help :-)
JTG

[FONT=&quot]
[/FONT]

Briefly, no we are not wrong. You are misunderstanding the difference between a "worker" and a self employed person working effectively as if they were an employee.

Even if you could somehow satisfy a tribunal that you did in fact have regular hours (and frankly I doubt you could) you still have a mountain to climb

Less than 3% of constructive dismissal claims succeed and to have any chance it is a prerequisite that you had fully exhausted the firms grievance procedure before resigning.

To answer your final question in your OP, yes it would cost you around £1200 to get a claim before a tribunal (edit. but for the fact your are in Northern Ireland). Also, although it is still fairly rare to have to pay the losing sides costs it is becoming slightly more common. If the judge at a pre-hearing feels you have a weak case (which seems likely) you could well be required to pay a deposit.

Guest101

just_this_girl wrote: »

Dear Undervalued & Guest 101,

Thank you for your replies.

I believe you may both be in error, however. This is due to information I found on the Citizens' Advice (NI) website [FONT=&quot][FONT=&quot]([/FONT]I'm n[FONT=&quot]ot allowed post the link, but I'll quote the relevant parts).[/FONT][/FONT]

[FONT=&quot]It states on the website that "[FONT=&quot]a[/FONT] contract of employment will usually be made up of two types of contractual terms". These are [/FONT]express terms (terms written in the contract, for example), and [FONT=&quot]implied terms, which [/FONT][FONT=&quot] include "terms implied by custom and practice".[/FONT]

[FONT=&quot]Under the heading [/FONT][FONT=&quot]"[/FONT][FONT=&quot]Contracts without specific working hours", it also states the following:[/FONT]
[FONT=&quot]"If your contract states that you have no set hours of work and that you must be available to work, but what actually happens is that you work the same number of hours each day/week, then it may become an implied term of your contract ... that you do have a set number of hours to work each day/week. If you are willing to work this number of hours but are given no work to do you may be entitled to be paid your normal wage for these hours.[/FONT]

[FONT=&quot]This is why I believe my normal working hours had become an implied term of my contract.[/FONT]

[FONT=&quot]It also seems that I was indeed an employee[/FONT]. [FONT=&quot](My employer controlled the work to be done and provided the work; I was paid at regular intervals;[/FONT] [FONT=&quot]If I was off sick, my employer had to replace me. My employer was responsible for supplying main tools and machinery and materials.) [/FONT]
[FONT=&quot][These guidelines come from the section “How to tell if someone is an employee or not”, same page][/FONT]

Considering the above, could anyone advise me further?
Thanks to anyone who can help :-)
JTG

[FONT=&quot]
[/FONT]

Ok obviously (with the above caveat) I cant read your contract, however, if your contract says zero hours of work, then you do not have to be available for work -


"If your contract states that you have no set hours of work and that you must be available to work."


Also on this point:


It also seems that I was indeed an employee - That's complex, so again with the caveat above: . [FONT=&quot](My employer controlled the work to be done - That's the same for a worker or an employee. they are paying you to do work, but being on zero hours, you could refuse it. and provided the work; - again that's the same. I was paid at regular intervals;[/FONT] - again that's the same for workers and employees. [FONT=&quot]If I was off sick, my employer had to replace me. - but again that's the same. My employer was responsible for supplying main tools and machinery and materials.) - to me this is the test for employed vs. self employed. Which is not what a zero hours contract is, except the right to refuse work[/FONT]



That aside, tribunal cost a lot of money and you're case is far from straight forward. In the future don't take zero hours contracts and look for full time (or whatever suitable hours)

NeilCr

I thought that about the costs but then realised the OP is in Northern Ireland

https://www.citizensadvice.org.uk/nireland/Work/problems-at-work-ni/employment-tribunals-ni/understanding-employment-tribunals-ni/

However, I agree with you, others and the CAB. I think the OP would struggle to make a case and, even if she did, constructive dismissal cases are notoriously difficult to win

polgara

I tend to agree that you don't have a case, but if you did you've also weakened it by working your notice and not raising a concern to the organisation

Undervalued

NeilCr wrote: »

I thought that about the costs but then realised the OP is in Northern Ireland

https://www.citizensadvice.org.uk/nireland/Work/problems-at-work-ni/employment-tribunals-ni/understanding-employment-tribunals-ni/

However, I agree with you, others and the CAB. I think the OP would struggle to make a case and, even if she did, constructive dismissal cases are notoriously difficult to win

If she is in Northern Ireland then I agree she does not have to pay a fee to bring the case. She is however still at some risk of having to pay costs if the case is felt to be very weak.

I say if she is in NI as quite a few people seem to find these CAB pages on employment matters despite being in the rest of the UK. Unless I am missing something she does not specifically say that she is in NI.

NeilCr

Undervalued wrote: »

If she is in Northern Ireland then I agree she does not have to pay a fee to bring the case. She is however still at some risk of having to pay costs if the case is felt to be very weak.

I say if she is in NI as quite a few people seem to find these CAB pages on employment matters despite being in the rest of the UK. Unless I am missing something she does not specifically say that she is in NI.

First line of the second paragraph of her opening post. "I worked for the past two and a half years as a part time waitress in a restaurant in Northern Ireland"