Rice Shack Ltd v Obi

An employee suspended under a zero-hours contract remains entitled to the contractual pay due during the suspension where there is no contractual right to suspend without pay. Taking other employment does not of itself make those wages improperly payable. The result depends on the contract's terms, including whether it restricts outside work or requires disclosure of it.

Where the employee was free to accept other work and no shifts were offered because the employer continued the suspension, the employer cannot establish that the employee would have been unavailable for offered work. The employer must show conduct capable of justifying summary dismissal before relying on after-acquired facts to defeat the employee's continuing entitlement to pay under section 13 of the Employment Rights Act 1996.

The Claimant worked shifts as a front-of-house assistant under a zero-hours contract. The Respondent suspended her pending a disciplinary investigation in March 2016. It made no further shift offers until December 2016 and accepted that it had no contractual right to suspend her without pay.

During the suspension, the Claimant obtained full-time employment elsewhere. The Manchester Employment Tribunal upheld her claim for unauthorised deductions from wages and awarded £4,087, calculated by reference to her average weekly remuneration until the Respondent offered further shifts on 13 December 2016.

The Respondent appealed. It accepted liability until 22 August 2016, when the Claimant began other employment, but contended that wages thereafter were not properly payable under section 13(3) of the Employment Rights Act 1996.

1. Appeal dismissed. The Employment Tribunal made no error in holding that the Claimant remained entitled to average weekly pay throughout the continuing disciplinary suspension, ending when the Respondent offered shifts on 13 December 2016.

2. It was common ground that the employment contract continued throughout the relevant period. The Respondent had no contractual right to suspend without pay. Its failure to pay the contractual average weekly sum therefore amounted to an unauthorised deduction under section 13 of the Employment Rights Act 1996.

3. The Claimant's acceptance of other employment did not make the suspended pay improperly payable. The contract was expressly a zero-hours contract. It neither prohibited other employment nor required its disclosure. The Respondent also accepted that, having made no shift offers before 13 December, it could not establish that the Claimant would have declined or been unavailable for shifts had they been offered.

4. The common-law principle in Boston Deep Sea Fishing and Ice Company Ltd v Ansell, [1888] 39 ChD 339, could not assist the Respondent even if it were available in a continuing-employment wages claim. Reliance on subsequently discovered facts would require conduct that entitled the employer summarily to dismiss. The Claimant had committed no such contractual breach.

5. The continuing suspension was the consequence of the Respondent's own decision and failure to progress its disciplinary process. The Tribunal was therefore entitled to award the wages due for that period.

• Employment Appeal Tribunal: dismissed the Respondent's appeal: [2018] UKEAT 0240_17_0203.

• Manchester Employment Tribunal: upheld the Claimant's unauthorised-deduction claim and awarded £4,087 following a hearing on 9 February 2017.