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26 January 2016

Zero hours contract worker challenges ET’s award uplift decision

A recent case (Duhoe v Support Services Group Limited) is a reminder that workers on zero hours contracts do have employment rights.

Mrs Duhoe began working for Support Services Group Limited as a security officer, under a zero hours contract, in October 2010. In late 2011, she raised grievances against her employer, including for failure to meet her claim for holiday pay. She did not work after submitting her grievances, but Support Services Group had in any case said that there was no work available and her contract came to an end in August 2012.

Mrs Duhoe brought claims for outstanding holiday pay, unfair dismissal and failure to provide written reasons for her dismissal. Although she had sought legal advice and her solicitor had presented her claim form, she represented herself at the hearing.

The Employment Tribunal (ET) found that Mrs Duhoe had been made redundant, in that her employer had no work for her to do, and that her dismissal was procedurally unfair. She was awarded £836 in respect of holiday pay arrears, £398 for unfair dismissal and £398 for her employer's failure to give written reasons for her dismissal. However, the ET rejected her claim that her compensation award should be uplifted, under Section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992, because there had been a breach of the Advisory, Conciliation and Arbitration Service statutory Code of Practice on Disciplinary and Grievance Procedures.

The ET dealt with an application for a preparation time order, awarding Mrs Duhoe £462 in respect of time she had wasted because there had been an unnecessary adjournment of the hearing, but did not deal with an earlier application for legal costs of £1,625.

Mrs Duhoe appealed against the ET's decision not to grant an uplift of her award and claimed that it had erred in law by failing to address the costs application. The Employment Appeal Tribunal (EAT) upheld her challenge regarding an uplift of her compensation award, on the ground that the ET had failed to give reasons for its decision, but only in respect of the holiday pay element of her claim. Section 207A did not apply to her claim for an award in respect of failure to give written reasons. In the EAT's view, the Code of Practice did not apply to her unfair dismissal claim as it specifically states that it does not apply to dismissals due to redundancy. Her unresolved grievance over holiday pay was, however, a matter to which the Code applied and the matter was remitted to the ET for further consideration.

With regard to the costs issue, under Rule 75(3) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, an ET is not able to make both a costs order and a preparation time order in favour of the same claimant. The ET had made errors of law in failing to deal with this issue. Therefore, in order to 'clear the field' so that the ET could decide which type of order to make, it was necessary for the EAT to set aside the preparation time order.

For advice on employment law matters, contact a member of the employment team. Call 01753 279029 or email your enquiry to employmentlaw@bpcollins.co.uk.

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