Advice Request re Constructive Dismissal on a Zero Hour Contract

Undervalued

NeilCr wrote: »

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"

Thanks, I couldn't see for looking!

Crazy_Jamie

I'm just posting to stick a pin in this thread to remind me to come back to it later. I don't have time to post now, but I am going to later because there is some advice here that is correct, and some advice is wrong (sometimes in the same post), and the two need to be distinguished.

Crazy_Jamie

Right, I'm back.

As a preliminary point, you need to be aware of time limits. In the case of constructive dismissal you have three months to bring a claim. That time limited can only be extended in narrow and exceptional circumstances. If you are already outside of that time limit, chances are you will not be able to bring a claim (and the rest of this post is meaningless). If you are within the three months, be aware of the time limit.

With that out of the way, the first thing to note is that it is right to say that your employment status is the key feature of this case. As has already been correctly stated, if you are a worker you cannot bring a claim for constructive dismissal. You must be an employee to bring such a claim. If you are an employee, you then have to show that your employer fundamentally breached your contract, as a result of which you resigned. It depends on the view that the Tribunal takes of the individual facts, but in my view even with a mobility clause in your contract you would have a decent chance of arguing that moving your place of work, reducing your hours and changing your role to the effect that it also impacted on your earning capacity (regarding tips) amounts to a fundamental breach of contract.

The worker/employee point is more difficult. Your written contract of employment is certainly the starting point evidentially, but it is not definitive. The Tribunal will look at the practical relationship that you had with your employer in order to determine your status. In my view, the fact that you had an agreement with successive managers as to your working hours, and that that arrangement was kept to for over two years, certainly gives you a viable argument that you were an employee. Whether or not you win that point will depend on features of the evidence that you have not provided, as the Tribunal will go into far more detail than this thread will, and within the evidence there may well be elements that undermine your case (such as the evidence on whether you were obliged in practice to work those hours, and the authority that the managers may have had, or not, to agree to set hours over a long period). I can't therefore say that you're likely to win that argument, but equally it seems like an argument that to me may well be worth running, depending on the specifics of the evidence.

Having said all of that, I just want to deal with some inaccuracies in the posts above mine. I don't want any of these people to take this personally, but ultimately there are only so many ways to tell someone that they are wrong.

Undervalued wrote:

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.

This would not be the case if the OP proved that she was an employee. Even if the contract says that she has no set hours, the basic and compensatory award would be based on what she was actually paid over a prior period (usually 12 weeks), and not what her contract says. The issue that you raise about her employment status is, of course, entirely valid, but that particular point isn't.

Guest101 wrote:

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)

This is not right. The express terms of the written contract are the starting point, and will be persuasive evidence, but the existence of a written contract does not prevent the Tribunal from finding that in practice the agreement between the parties was different. I'm not saying, just to clarify, that the OP has a nailed on argument in that respect in this case. Such arguments are difficult to win when there is a contrary written contract. But it does appear to be arguable.

marliepanda wrote:

"And must be available to work"

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

Just to add an additional note here, but the evidence as to whether or not the OP was obliged to work may well prove to be a weakness in the case. That will depend on evidence that we do not currently have. Mutuality of obligation is a key element or being an employee, and in this particular case it is probably the biggest risk to the OP's position. She can establish that she had set hours for two and a half years prior to the change, but we don't know how the evidence will pan out in relation to whether or not the employer was obliged to provide them, and whether she was obliged to work them. The contract will say not, of course, but the practical relationship may well be different.

Undervalued wrote:

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.

The first underlined section about exhausting the grievance procedure being a pre requisite is simply wrong; see what I'm about to write below about the impact of not raising a grievance.

The second underlined bit about the awarding of costs being more common is not one that I take issue with, but more one that I'm intrigued by. What's your basis for saying that? I only ask because I'm not aware of it myself, but that of course doesn't mean that it hasn't happened.

While I'm on that point I would stress (as, in fairness, Undervalued has) that the awarded of costs really is unusual. If a deposit order is made then the OP can choose just to not continue with the case. Whilst there will obviously be a range of opinion on how strong an individual case is, for the reasons that I've already mentioned I wouldn't say that the OP is at risk of a costs order here, though again I do acknowledge that we haven't seen all of the evidence.

polgara wrote:

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

Neither aspect of this case would weaken the OP's position. The wording of the Employment Rights Act precludes the working of notice as being something that can amount to waiver (section 95(1)(c), if anyone is interested enough to look it up). A compensatory award may be reduced by up to 25% if the employee has not complied with the ACAS Code of Practice, and that would include not raising a written grievance. It would only really come into play once the OP had already won, though. I'm sure the point would be made by the employer that if the OP believed the actions to have amounted to a fundamental breach she would have raised a grievance, but in my view that's not a particular strong point in the circumstances.