Employment Law & HR Update - September 2018
Sophie Allinson discusses zero-hours contracts and unfair dismissal claims in her September 2018 Employment Law and HR update.
Can an employee on a zero-hours contract be classified as an agency worker if his position is temporary?
Yes, decided the Employment Appeal Tribunal in Matei v Brooknight Guarding Limited.
The Claimant (Mr Matei) was employed as a security guard by the Respondent (Brooknight), working under a zero-hours contract. The Claimant was assigned to different work sites, covering different clients of the Respondent. However, apart from one short period, the Claimant worked exclusively for one client, Mitie. After 21 months of employment, the Claimant was dismissed.
The Claimant argued that he should be regarded as an agency worker, thereby entitling him to the same basic working conditions as Mitie’s staff after completing a 12 week ‘qualifying period’ with Mitie. The Employment Tribunal agreed, stating that the Claimant, working under Mitie’s supervision and directions, was working temporarily for Mitie and was an agency worker.
The Respondent consequently appealed, arguing that the Claimant’s employment under a zero-hours contract did not necessarily mean that he was working on a temporary basis. The Employment Appeal Tribunal rejected this argument, stating that the Claimant’s position was not indefinite but rather it was temporary and Mitie’s evidence in fact suggested a temporary arrangement.
Should time be extended where the time limit for bringing an unfair dismissal claim expires on a non-working day?
No, decided the Employment Appeal Tribunal in Miah v Axis Security Services Ltd.
The Claimant (Mr Miah) brought a claim of unfair dismissal, with his claim form being received by the Employment Tribunal on 30 January 2017. The time limit for bringing an unfair dismissal claim is 3 months from the date of dismissal and, in the Claimant’s case, the time limit expired on 29 January 2017. Consequently, the Employment Tribunal dismissed his claim due to it being presented out of time.
The Claimant argued that the time limit expired on a Sunday, a non-working day. As such, he argued the provision of the Employment Tribunal Rules of Procedure 2013 allowed time to be extended to the next working day when a deadline falls on a non-working day.
The Employment Appeal Tribunal rejected this argument, holding that the time limit for bringing an unfair dismissal claim is contained within the Employment Rights Act 1996 and therefore the provisions of the Employment Tribunal Rules 2013 did not apply.
Can a dismissal be fair when an employee is not given the right of an internal appeal?
Possibly, decided the Employment Appeal Tribunal in Afzal v East London Pizza Ltd T/A Dominos Pizza.
The Claimant (Mr Afzal) had time-limited leave to work in the United Kingdom. His permission expired on 12 August 2016. Whilst the Claimant applied for the right to permanent residency in the UK, evidence of this application was not submitted to the Respondent’s HR team until the afternoon of 12 August 2016. Due to a fear of prosecution and civil penalties, the Respondent had already (before receiving evidence of the Claimant’s application) posted to him on 12 August 2016 notice of the termination of his employment and did so having followed no procedure and giving no right of appeal.
The Employment Tribunal held that the failure to give the Claimant a right of appeal did not make the dismissal unfair. This was due to the fact that the Respondent did not know, at the time it dismissed the Claimant, that the Claimant had made an application for permanent residency.
However, the Employment Appeal Tribunal decided that a right of appeal would have provided the Claimant with the opportunity to demonstrate that the application had been made in time, or would have provided the Respondent with the opportunity to investigate the Claimant’s immigration status themselves.
The EAT believed the dismissal to be unfair on this basis, but the EAT also decided that rather than impose its own view, it should send the case back to the original Employment Judge for further consideration as to whether the dismissal was unfair.
For more information on how any of the above cases impact on your business, contact a member of the Employment Law & HR team at firstname.lastname@example.org.
About the author
Sophie is a Solicitor in the firm's HR & Employment team.