Aguebor v PCL Whitehall Security Group (Debarred), Kingdom Security Group Ltd

A contractual term stating that full-time hours will generally be 56 hours per week, unless otherwise agreed, confers an entitlement to that level of work. The word “generally” permits limited latitude, such as for a short period or an emergency. It does not permit a unilateral and significant long-term reduction below 56 hours.

Under Transfer of Undertakings (Protection of Employment) Regulations 2006, a transfer of an undertaking and a service provision change are distinct, non-exclusive gateways. A tribunal must address a properly raised transfer-of-undertaking case by making findings and applying the multi-factorial test. An appellate tribunal cannot supply those factual findings itself.

The Claimant had worked full time as a security officer from 2000. His original contract stated that his contracted hours would generally be 56 per week unless otherwise agreed. Following an apparent transfer, PCL issued terms stating that it could not guarantee minimum hours.

When the security arrangements at the Claimant’s site changed, he was offered substantially less work and resigned. The Employment Judge dismissed his constructive unfair dismissal claim. She treated the two contracts as not materially different and rejected a service-provision-change transfer to Ward Security. She did not determine KSG’s alternative case that there had been a transfer of an undertaking under regulation 3(1)(a).

The appeal concerned the proper construction of the original hours term and whether the alternative TUPE gateway required determination.

1. Appeal allowed and remitted. The Employment Judge erred in treating the 2000 and 2010 contractual terms as having no significant difference concerning hours.

2. On its true construction, clause 7.1 of the 2000 contract entitled the Claimant to generally 56 hours’ work each week unless otherwise agreed. Read with the full-time heading and clause 8, it was not a zero-hours arrangement. “Generally” allowed latitude for a short period or an emergency, but did not authorise a unilateral significant reduction below 56 hours for a substantial period. The term did not guarantee 66 hours, night work, or work at the particular site.

3. The Employment Judge had made no findings on whether work complying with that contractual entitlement was offered. The constructive-dismissal issue therefore required rehearing.

4. The Judge also erred by failing to determine the pleaded alternative case under regulation 3(1)(a) of Transfer of Undertakings (Protection of Employment) Regulations 2006. A transfer of an undertaking and a service provision change are distinct and non-exclusive gateways. The former requires a multi-factorial assessment of all relevant circumstances. A change of client may be significant, but it does not remove the need to address that gateway.

5. The Employment Judge made no relevant primary findings and did not apply the multi-factorial approach. The Employment Appeal Tribunal could not make those findings itself. Both issues were remitted to a fresh Employment Judge, who was to decide whether there was a transfer under regulation 3(1)(a) and, if not dispositive, whether the Claimant was constructively dismissed.

• Employment Appeal Tribunal: Allowed the appeal from the Employment Judge’s judgment dated 21 October 2013 and remitted both issues for rehearing before a fresh Employment Judge.
• Employment Tribunal: Dismissed the Claimant’s constructive unfair dismissal claim.