Ms F Sillah v Certitude Support Ltd: 2302356/2017
JUDGMENT
[1]The Claimant did not have the requisite two years’ continuous service to bring a claim of unfair dismissal.[2]The Tribunal therefore does not have jurisdiction to hear her complaint of unfair dismissal and the claim is dismissed. ______________________ Employment Judge Corrigan 12 February 2018 Note Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. Case Number: 2302356/2017 1 EMPLOYMENT TRIBUNALS Claimant: Ms F Sillah Respondent: Certitude Support Limited Heard at: London South On: 1 February 2018 Before:REASONS
[1]By her claim received 2 September 2017 the Claimant brings a complaint of unfair dismissal.[2]The Respondent is a charitable organisation which provides support to individuals with learning disabilities, autism and mental health needs. The Respondent employs approximately 755 people over 92 sites. The Claimant worked as a support worker.[3]The preliminary hearing was listed to consider whether the Claimant has sufficient service to bring an unfair dismissal claim. Case Number: 2302356/2017 2[4]The Claimant had worked under a zero hours contract from at least 25 January 2013 but was only employed on a permanent contract of employment from 24 March 2017. She was dismissed from that position on 9 May 2017.[5]The question at the preliminary hearing was whether the Claimant’s time on the zero hours contract could count towards the two year continuous service requirement to claim unfair dismissal (s108 Employment Rights Act 1996). There is a dispute as to the precise start date of the zero hours contract but it was agreed with the parties that the main issue was whether there was sufficient mutuality of obligation between the parties during the zero hours contract.[6]The Claimant gave oral evidence. The Respondent had prepared a bundle of documents including the contractual documentation. During the hearing the Respondent obtained a list of the number of shifts the Claimant worked each month from January 2015 until her permanent contract commenced, as follows: Jan 2015 10 Jan 2016 0 Jan 2017 0 Feb 2015 0 Feb 2016 0 Feb 2017 2 March 2015 0 March 2016 5 April 2015 0 April 2016 4 May 2015 7 May 2016 11 June 2015 12 June 2016 19 July 2015 9 July 2016 12 August 2015 0 August 2016 5 September 2015 2 September 2016 12 October 2015 6 October 2016 10 November 2015 4 November 2016 5 December 2015 0 December 2016 0Conclusions
[7]I accept there was insufficient mutuality of obligation for a global employment contract.[8]The Claimant’s employment documentation, as summarised in the Response, was clear that there was no intention to create mutuality of obligation or an employment contract whilst she worked on the zero hours contract. Case Number: 2302356/2017 3[9]The Claimant agreed that in practice the Respondent did not have to offer her work and there were long periods when they did not do so, for example when they employed a permanent worker and had no need for the Claimant at a particular location. The Claimant also did not always accept work. There were lengthy periods when she did not accept work that was offered, for example when she was on holiday for as long as two months, and in the weeks leading up to the commencement of her new position.[10]The Claimant agreed that she was a bank worker with ad hoc shifts and that she wanted a permanent job in order to have more stability.[11]The fact that there was no global contract is supported by the dates the Claimant worked. She initially implied that she worked every week unless she was on holiday. In reality, although some months do suggest this, there are other months when she worked substantially less for example 0 or 2 days a month, as can be seen from the list at paragraph 6 above.[12]Due to the length of the relationship I considered whether the Claimant had a series of contracts of employment when she was actually present and whether these were sufficiently frequent to create continuity of service, by virtue of s 212 (1) Employment Rights Act 1996, which provides that any week during part of which an employee’s relations with his employer are governed by a contract of employment counts in computing the employee’s period of employment.[13]I considered whether when the Claimant was actually in attendance she had an employment contract. She had to complete the shift and worked under the Respondent’s control. In limited circumstances the Respondent could cancel a booked shift but then they had to pay the Claimant for 2 hours. There was therefore some mutuality of obligation during the shifts the Claimant agreed to work and I find on the balance of probability this was sufficient for the Claimant to be an employee when actually present at work. The Respondent accepted that if there was such a shift in every week in the two years prior to the Claimant’s dismissal then this could build up two years’ continuity of service. However this was clearly not the case on the figures provided at paragraph 6 above.[14]I also had consideration of s212 (3) (c) Employment Rights Act 1996 which provides that any other week (not within subsection (1)) during the whole or part of which an employee is absent from work in circumstances such that, by arrangement or custom, he is regarded as continuing in the employment of his employer for any purpose, counts in computing the employee’s period of employment. I considered whether there was any such arrangement or custom that could contribute to building up two years continuous service in weeks when the Claimant was not present at work.[15]I considered this arrangement or custom must be more than the zero hours agreement itself. Case Number: 2302356/2017 4[16]The Claimant put forward the obligation to keep training up to date but accepted that training days were included in the shift days listed at paragraph 6. There were therefore still periods when she did not work for three months (for example December 2015 – February 2016) and was not required to attend any training.[17]She also put forward the fact that her name stayed on the rota even when she was not offered work. However she also gave evidence that the reason she was not offered work for at least one lengthy period was because permanent staff were appointed to a particular home and she then moved to another location. It is likely that on that occasion she did not stay on the rota.[18]To conclude, I was not able to find that there was continuity of employment for two years prior to the Claimant’s dismissal.