Borrer v Cardinal Security Ltd

Whether an employee has a contractual entitlement to guaranteed work cannot be determined from a general term allowing a manager to specify working hours alone. The tribunal must ascertain the parties’ true agreement from all relevant circumstances. Those circumstances include the written terms, the parties’ practical conduct, their mutual expectations and their relative bargaining power.

A regular practice of working fixed hours, recruitment to cover identified hours, and the employer’s efforts to find alternative assignments may establish a contractual entitlement to those hours. A term permitting transfer between assignments may affect the place and rate of work, without removing an entitlement to work. Where that contractual issue has been wrongly decided, the questions of repudiatory breach, constructive dismissal and unfairness must be reconsidered.

The claimant was employed as a security guard. He worked principally for two years at a supermarket assignment for 48 hours each week. After the client asked for his removal and alternative work was initially unavailable, he used accrued holiday and then worked several temporary shifts. He resigned, alleging that the employer had fundamentally breached his contract by failing to offer sufficient work.

The Employment Tribunal at Havant held that his hours were to be specified weekly by his line manager. It therefore found that he had no guarantee of work, applied a no-work-no-pay analysis, and dismissed his claims for unlawful deductions, notice pay and constructive unfair dismissal.

On appeal, the central issue was whether the parties’ contract gave the claimant a right to work 48 hours each week.

1. Appeal allowed. The Employment Tribunal erred in concluding that the claimant had no contractual entitlement to guaranteed work and in treating the arrangement as one of no work and no pay.

2. The relevant inquiry was the parties’ true agreement. In accordance with the approach approved in Autoclenz Ltd v Belcher [2011] IRLR 820, the written statement was not conclusive. The Tribunal had to consider all relevant evidence, including the written terms, the parties’ conduct and expectations, and their relative bargaining power.

3. The term that working hours would be specified by the line manager did not, alone or with the weekly text-message arrangements, establish that the employer was free to provide no work. The Tribunal’s own findings showed that the claimant and another guard had been recruited to cover identified hours, that the claimant had in fact worked 48 hours a week for two years, and that the employer sought other assignments after the client’s complaint.

4. Taking the evidence as a whole, the true agreement was that the claimant had a contractual entitlement to work 48 hours each week. The rate of remuneration for those hours could vary according to the assignment to which he was allocated. The Employment Tribunal’s findings did not determine whether an express agreement for 48 hours had been made at interview, but that was not necessary to the conclusion reached from the established facts.

5. The Employment Appeal Tribunal did not itself determine repudiatory breach, constructive dismissal or unfairness. Those issues were remitted to the same Employment Tribunal for rehearing in light of the contractual conclusion. Applying the guidance in Sinclair Roche & Temperley v Heard [2004] IRLR 763, there was no reason to doubt that the original Tribunal could deal with the remitted issues fairly, and remittal to it would save time and expense.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and remitted the constructive dismissal issues to the same Tribunal.
• Employment Tribunal, Havant: Decision sent to the parties on 28 May 2012. It dismissed the claims for constructive unfair dismissal, unlawful deductions from wages and notice pay on the basis that there was no contractual guarantee of work.