Tribunal concludes "zero hour contract" was full time

Monday 18 November 2019

Jersey's Employment Tribunal has ordered a construction company to pay one of their labourers £1,085 in notice and unpaid bank holiday pay, after concluding his ‘zero-hour’ contract was in fact a normal contract of employment.

Henryk Eszrych worked as a labourer for Drylining Excellence Limited, five days a week on a 40-hour basis, from January 2018 until February 2019.

His contract contained ‘Zero Hour Clauses’ that specified Drylining Excellence, “...had no duty to provide you with any work at such times.”

It also mentioned Mr Eszrych’s employment was subject to him passing a four-week probationary period and that a week’s notice would be required from either party to terminate the contract.

Drylining Excellence’s work started to reduce in October 2018 due to a number of unsuccessful tenders and delays to the start of other building contracts. In January 2019, the Directors spoke to Mr Eszrych and other members of staff explaining their financial situation.

On 6 February, Mr Eszrych received a text message advising him not to come to work for the next two days and that Drylining had not been able to source work for him as they had previously done.

The company said they were waiting to hear for work on the following Monday (11 February) and “hoped” the situation would be temporary.

However, when Mr Eszrych called on 11 February, he was told there was no news as to when work would be available. Mr Eszrych told the Tribunal he couldn’t afford to wait indefinitely for Drylining to offer him work.

When he was told there was no work and no indication of when there would be any, he believed he had been dismissed. He therefore went to an employment agency to find other work on a zero hours contract.

He informed Drylining on 13 February and told them they owed him for unpaid bank holidays. When work eventually started again a few weeks later, Drylining did not contact Mr Eszrych as he had accepted work elsewhere.

Pictured: Mr Eszrych found work through an employment agency.

Mr Eszrych brought a case before the Employment Tribunal in April 2019 claiming for unfair dismissal, wrongful dismissal for his unpaid notice as well as unpaid bank holidays.

Drylining argued Mr Eszrych was hired on a zero hour contract and they were not obliged to give him work.

They said they hadn’t dismissed Mr Eszrych but simply told him not to come to work as per the terms of his contract. They argued he had resigned by accepting work through an employment agency and was therefore not entitled to receive pay for his notice.

While the company accepted they owed Mr Eszrych for the bank holidays he had worked, they denied owing him for the bank holidays he did not work as he was on a zero hours contract.

In addition, Drylining filed a counter-claim for alleged losses. They said Mr Eszrych had over claimed for his hours and not worked eight hours per day, included his unpaid lunch break in the calculation of his hours and signed out of sites earlier than he told the company.

Mr Eszrych denied all allegations, saying his contract entitled him to work through his lunch breaks to finish earlier. The company’s director argued this was not meant to be a regular thing and added she had a “hunch” he had not worked through his lunch break on those days, although she did not have evidence to support her claims.

Pictured: Hilary Griffin, the Chairman of the Employment Tribunal, concluded Mr Eszrych was engaged under a normal employment contract.

Hilary Griffin, the Chairman of the Empployment Tribunal, concluded the Zero Hour Clauses didn’t reflect “the true nature of the relationship between the parties” and that Drylining was under an obligation to provide paid work to their employee.

“[Mr Eszrych] was engaged under a normal employment contract with regular hours and mutual obligations on both parties,” she wrote in her judgment.

She said “a reasonable employee who had worked regular hours for over a year and who had never previously been told not to come to work for an unlimited period of time” would have concluded there was no longer a job for them after the call of 11 February and concluded Drylining had dismissed Mr Eszrych.

Mrs Griffin concluded “lack of work” could justify Mr Eszrych’s dismissal. “In these circumstances (particularly noting the size and administrative resources of the Respondent together with the unexpected nature of this crisis), [Drylining]’s decision to dismiss [Mr Eszrych] fell within the range of reasonable responses of a reasonable employer,” she wrote.

She rejected the unfair dismissal claim but concluded Mr Eszrych was entitled to receive a notice to terminate his employment. She ordered Drylining to pay him a week’s wage, £387.80.

She also ordered the construction company to pay not only the bank holidays Mr Eszrych had worked but also those which fell on days he would ordinarily work, which amounted to £698.04, making a total of £1,085.84.

The employer’s counter-claims were all dismissed.