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In one of those cases that are hard to fathom what else HR could have done, in July 2013 the Employment Appeals Tribunal (EAT) in Borrer v Cardinal Security Ltd looked at the issue where a contract stipulates variable hours and some degree of practice suggests this but the reality on the ground is different.  It is of no surprise the EAT found the reality on the ground to be the true state of the contractual relationship.  

In this case, Mr Borrer was a security guard who had worked for the Cardinal Security for 4 years, at the time he and a Mr McCarthy were recruited to cover 102 hours at Morrisons’ Brighton store. Thereafter, the Claimant worked principally at the Brighton store, working 48 hours a week.

At the time of his appointment, he was sent a letter that stated that the terms of employment would be set out in the main terms of employment which included the following:

  • (a) in relation to place of work, “You may be required to work at any of the company’s assignments and it is a condition of your employment that you are prepared whenever applicable to transfer to any other of the company’s assignments”;
  • (b) in relation to remuneration, “After completing training you will be paid the rate applicable to the assignment to which you are allocated. On your initial assignment the hourly rate is to be agreed. The rate for subsequent assignments will vary and may result in an increased or decreased hourly rate of pay. Further details are contained in the employment handbook”; and
  • (c) in relation to hours of work, “Your working hours will be specified by your line manager”. The statement of main terms then goes on to deal with those who wish to opt out of the 48-hour Working Time Regulations provision.

Mr Borrer indicated in evidence that he received (on a regular basis) a text from his area manager weekly telling him or confirming where he was to be working the following week. If he did not receive a text, then he would contact the control centre and be told where would be working the next week.

(6) In addition to being based on the Morrisons contract at the Brighton store, the Claimant would also cover on the Morrisons contract when individuals were absent on holiday or through sickness at other of the Morrisons’ stores.

(7) Towards the beginning of October 2011 Morrisons requested that he be moved from the Brighton store ( pursuant to their contract with the firm, Morrisons were entitled to make that request). The Claimant moved to Morrisons’ Seaford store, where he worked for the next two to three weeks.

(8) On or about 25 or 26 October 2011 he was informed that the manager of the Seaford store was unhappy, for similar reasons as those given by the Brighton store, to have the Claimant guarding the store. Because no alternative work could be found for the Claimant for the next few days, arrangements were made for him to use up some outstanding holiday entitlement.

(9) Around 30 October 2011 Morrisons put formally in writing their concerns about Mr Borrer and the security firm’s regional operations manager, found alternative work and before Mr Borrer could start working on another of their client’s contract, the security firm considered it necessary to clarify the situation regarding the complaint made by Morrisons. A meeting with the Claimant was arranged for 7 November.

(10) After 7 November the Claimant was offered and worked for three days at Peacocks’ store in Brighton.

(11) Mr Borrer then resigned because the firm did not offer him enough hours and “for no other reason”.

(12) During the resignation conversation Mr Hue told the Claimant that the other guard on the Peacocks contract had indicated that he was leaving as of 10 or 11 November, so there would have been a full-time position of 38 hours at the Peacocks store in Brighton.

(13) On 12 November 2011 Mr Borrer wrote to the Companies group human resources manager, stating, in so far as is material, “Following my conversation with James Hue today and the letter to you yesterday from my union representative Tony Greenstein, I have decided to resign forthwith. I was told there was only one day’s work for me next week. I have been suspended without pay for over 2 weeks. The present situation is intolerable. I have worked as a security guard at Morrisons for over 4 years, including two with you. I always worked 48 hours a week. You are in clear and fundamental breach of my contract of employment. As far as you and the company are concerned, employment rights do not exist. I absolutely reject your statement that I was on a zero hours contract. I worked the same hours since I have been with you. Given the way you have behaved, I therefore have no alternative but to resign”. The firm replied by letter dated 14 November saying that the letter was of concern to them and that before they accepted the resignation they wanted to discuss it and investigate matters with him. The Union, responded to that letter by email the following day.

The original employment tribunal

The original Tribunal’s conclusion that the Claimant had no contractual entitlement to guaranteed hours of work, namely 48 hours, appears to be based on two findings: first, the provision relating to hours of work in the statement of main terms of employment that his working hours would be specified by his line manager; and second, the evidence of the Claimant that he was texted each week, and if not texted would check up with the controller as to where he was working the next week, from which the Tribunal inferred it must follow on which contract and hence for what hours.

The Appeal court found

The true agreement between the parties, ‘considering the evidence as a whole (and by reference to the specific findings made by the Tribunal) is that the Claimant did have a contractual entitlement to work 48 hours each week. His remuneration for these hours of work would depend on the rate applicable to the assignment to which he is allocated.’

The EAT sent the case back to the same Tribunal for reconsideration.

If it looks like a donkey, smells like a donkey then it is a donkey!

Observations

Part of the issue here is that the custom and practice showed the employee to be earning a regular wage, but another indicator here is that the firm did not sufficiently shore up the issue about how much the employee would earn and then enforce the flexible nature of this.

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