Pulse Healthcare Ltd v Carewatch Care Services Ltd & Ors

A written zero-hours agreement does not determine the parties’ true legal relationship where the evidence establishes a continuing agreement to provide and perform regular work. A tribunal may find a global contract of employment where the employer is obliged to offer agreed weekly hours and the individual is obliged to work them.

The ability to raise an objection to a roster does not, by itself, negate mutuality of obligation. Where a global contract subsists throughout the relevant period, continuity of employment is not broken between individual shifts.

Five carers worked on a continuous, specialised 24-hour care package. Carewatch had provided the package until the contract passed to Pulse in December 2010. The carers contended that their employment transferred under the Transfer of Undertakings (Protection of Employment) Regulations 2006.

At a pre-hearing review, the Employment Tribunal held that the carers were employees within section 230 of the Employment Rights Act 1996. It found that, despite written zero-hours agreements, they worked agreed regular weekly hours under contracts requiring Carewatch to provide work and requiring them personally to perform it.

Carewatch and Pulse appealed, challenging mutuality of obligation and continuity of employment. The transfer issue under TUPE was not before the Employment Appeal Tribunal.

1. Appeals dismissed. The Employment Judge was entitled to find that each claimant worked under a global contract of employment, rather than under a succession of separate shift contracts.

2. The decisive finding was that the parties’ true agreement required Carewatch to offer each claimant agreed regular weekly hours on the critical-care package, and required the claimant to perform them personally. On the evidence accepted, Ms Kelly had agreed 24 hours per week and Mrs Short 36 hours per week. That supplied the necessary mutual obligations.

3. The written zero-hours agreements did not reflect the true agreement. The approach accorded with Autoclenz v Belcher [2011] ICR 1157: contractual clauses denying an obligation to offer or accept work do not govern where they are unrealistic and do not reflect the real relationship.

4. The nature of the care package, the need for a stable trained team, the regular hours recorded, payment during suspension, and Carewatch’s evidence supported the Employment Judge’s conclusion. A worker’s ability to object when a roster is issued does not itself mean that no mutuality exists. Under an ordinary global contract, the employer may decide whether to issue a reasonable instruction to work the rostered hours.

5. Because the contracts were global and continuing, no real issue of continuity of employment arose. Fuller reasons about possible gaps would only have been required if the Employment Judge had found successive short-term contracts.

• Employment Appeal Tribunal: Appeals dismissed. The Tribunal upheld the Employment Tribunal’s finding that the claimants were employees under global contracts of employment.
• Employment Tribunal, Newcastle: By judgment dated 29 July 2011, held that the five claimants were employees within section 230 of the Employment Rights Act 1996.