Ekwelem v Excel Passenger Service Ltd

An employer cannot treat an undifferentiated period of non-payment as resolved merely because an employee was later unwilling to perform any duties. Where the employee may initially have been willing to perform an available part of the contractual role, the tribunal must determine that earlier period separately and decide whether the contract required payment.

A later appointment providing for a maximum of 45 hours displaced the earlier zero-hours provision. A series of alleged wage deductions does not cease to be a series because some deductions may ultimately be lawful. A letter treating an employee as resigned and processing a P45 was a dismissal, not a resignation by conduct.

The claimant, a driver and vehicle supervisor, was suspended on pay after allegations led to revocation of his PCO licence. The employer subsequently placed him on unpaid leave. On 8 October 2010 it offered him supervisor duties only; the Employment Tribunal found that he refused them.

After his acquittal and reinstatement of his licence, the claimant demanded payment for the unpaid period before returning. The employer wrote that it assumed he had resigned and would process his P45. The Employment Tribunal dismissed claims for unlawful deductions and unfair dismissal, while alternatively finding an unfair dismissal with 100 per cent contributory fault.

The claimant appealed. The central issues were whether the unpaid period before 8 October 2010 required separate consideration, whether the contract remained zero-hours, and whether the employer's letter effected a dismissal.

1. Appeal allowed in part and remitted. The Employment Tribunal's dismissal of the unlawful-deductions claim, its finding that the claimant had resigned, and its finding of 100 per cent contributory fault were quashed. Its alternative finding that the claimant had been unfairly dismissed was preserved.

2. The March 2010 appointment as vehicle supervisor, providing for a maximum of 45 hours weekly, could not be construed as retaining a zero-hours contract. It was either a separate supervisor contract requiring work to be provided and performed up to that maximum, or, preferably, it subsumed the earlier driver contract and displaced its zero-hours term.

3. The Tribunal erred by treating the entire period after paid suspension ended as one period governed by [1987] IRLR 193. Its finding about unwillingness to give part performance concerned the period after the 8 October meeting. It made no finding that the claimant was wholly unwilling to perform between 1 September and 8 October. It had to decide separately whether he was willing to perform supervisor duties, or driving duties subject to the loss of his licence, and whether the contract consequently required payment.

4. The alleged deductions formed a continuing series. The fact that the claimant might fail in relation to a later part of that series did not render the earlier complaint out of time.

5. The employer's letter of 26 September 2011 was an express termination by the employer. Sending a P45 after asserting that the claimant had resigned did not convert that termination into a resignation by conduct. The contribution finding depended on the erroneous conclusion that no wages could be due after 1 September 2010 and required reconsideration.

6. The matter was remitted to a differently constituted Employment Tribunal, narrowly confined to the claimant's willingness to perform duties from 1 September to 8 October 2010 and contributory fault in light of that finding and his later demand for unpaid wages.

• Employment Appeal Tribunal: allowed the appeal in part, quashed the relevant findings, preserved the alternative finding of unfair dismissal, and remitted limited issues to a differently constituted tribunal.
• Employment Tribunal, London South: Employment Judge Balogun dismissed the unlawful-deductions and unfair-dismissal claims, holding primarily that there had been no dismissal; alternatively, she found an unfair dismissal with 100 per cent contributory fault.