Can unfair dismissal be undone and followed by constructive unfair dismissal?

[Temida]

Dear CAG.

 

I have taken legal action against my former employer on the ground of unfair dismissal and racial discrimination.

 

My claim for unfair dismissal is based on the fact that in February 2013 my former employer, with whom I worked since October 2011, had left me without any work, and because of that I was forced to seek new employment, which I did.

 

The situation with my former employer is a bit complicated due to the fact that I was employed on, what is called, a "zero-hour contract", and it is clearly written down in my contract of employment with them, that they have no obligation to offer me any work, and I have no obligation to accept any work offered by them.

 

I, however, think that the fact that I was employed on a "zero-hour contract" does not really matter as it is the true relationship between an employer and an employee that really matters, and in my case I believe I have strong case to prove that I was actually an employee. It will be, therefore, up to the Employment Tribunal to establish if I was an employee, or not.

 

Followed by being left without any work in February 2013, but knowing, at the same time, that there were shifts available, in April 2013 (this was before I submitted my claim to the Employment Tribunal, and still not having any work from them since February 2013) I wrote a letter to my former employer requesting to immediately bring me back to work. Soon after that letter the employer started offering me shifts. I, however, still decided to proceed with a legal action and in the end of April 2013 I submitted my claim to the Employment Tribunal. My claim was accepted.

 

In my ET1 form I claim unfair dismissal (the fact that I was left without work in February 2013 and forced to seek new employment) and racial discrimination. However, because I submitted my claim after I had send a letter to my employer requesting to bring me back to work, and as a response to that letter my employer started offering me shifts, in the part of the ET1 form where it asks "Is your employment still continuing?" I ticked: YES.

 

The fact is, that following that letter, which I had sent in April 2013 and during the period when the employer was "trying" to bring me back to work, there were more discriminatory acts against me, which totally put me off, and up till today I have not worked any shift. I, therefore, have not worked at all for them since when they left me without work, which was in February 2013.

 

In the response to my claim (ET3 form) the employer now argues, that I am still in employment with them, and I am being offered shifts, which I do not undertake.

 

In this situation I do not quite know how to proceed. I still believe that I was unfairly dismissed in February 2013. I have done quite a lot of research on a zero-hour contract, and the fact is that an employer can terminate a zero-hour contract by simply stop offering work, and no other formal termination is needed, so therefore, I think I was correct to assume I was dismissed in February 2013, and this is exactly how I felt at that time.

 

However, the fact that later on (in April 2013) I sent the employer a letter, in which I requested to be brought back to work, and as a response to that letter they started offering me work, as well as the fact that I ticked in my ET1 form that my employment is continuing makes me now think that maybe I am, in fact, still in employment with them.

 

I am, therefore, thinking that maybe I should now send the employer a letter of resignation and claim constructive unfair dismissal, which I believe I have strong grounds to proceed with as well.

 

However, I am not quite sure what the law says.

 

Can unfair dismissal be undone? If the Employment Tribunal admits that I was unfairly dismissed in February 2013, could that dismissal be undone by me sending a letter to the employer requesting to bring me back to work, which they did, but at that point I did not want to work for them anymore and did not accept, nor did any work for them.

 

If, however, my dismissal never actually happened, or that part of my claim fails, can I still claim constructive unfair dismissal? - if I submit a letter of resignation now.

 

Is it legally possible to claim both unfair dismissal followed by constructive unfair dismissal?

 

Or maybe I should not send any letter of resignation at all and stick to my original claim that I was unfairly dismissed in February 2013.

 

I would very much appreciate any advice on that matter as I would not like to weaken my case by making any unnecessary mistake.

 

 

Thank you very much and looking forward to any advice.

[Emmzzi]

there is no unfair dismissal of any kind here. Are you working the shifts the offered? If not, why not?

 

what happened to make you think it was racial discrimination versus eg just not thinking you were good at your job? There may be more mileage in that angle.

[becky2585]

It doesn't sound as though you have been dismissed at all, from what you have said - the Tribunal may order a PHR to determine whether a dismissal occurred and if not, the claim would need to be struck out.

 

You have a number of problems here. Even if you were dismissed, zero hours workers cannot generally bring an unfair or constructive dismissal claim if there is a signed contract confirming zero hours worker status. Secondly I wouldn't advise trying to claim constructive dismissal - you would be saying that they had fundamentally breached your contract by them offering you no hours, but the contract clearly states they don't need to offer you any.

 

Just be careful - if a judge advises you you may be in danger of a costs award by proceeding, it would be strongly advised to withdraw. In the meantime it would be worth seeking legal advice.

[becky2585]

Oh and in terms of your question, both are technically cases of unfair dismissal. It would be down to the ET to decide the circumstances of the dismissal, ie whether express or constructive.

[steampowered]

With a zero hours contract like that you would normally be deemed self-employed, not an employee. This would take you entirely outside the scope of unfair dismissal. You would need to show why you are an employee ... for example did they deduct national insurance from your wages and did you have regular working hours prior to February 2013.

 

To show that you were unfairly dismissed in February 2013 you would need to convince the Tribunal that (1) you were an employee not self-employed; (2) the employer was under a legal obligation to give you a certain number of hours despite what is written in the contract, and (3) the employer's breach of its legal obligation was so serious that it constituted a dismissal. I don't know the full details of your case but this sounds like quite a difficult claim ... as the employer offered you shifts again soon after you complained you could struggle to show that there was a dismissal here.

 

If you were unfairly dismissed back in February 2013, then the offer of shifts in April 2013 would have been a fresh offer of employment which you were not obliged to accept.

 

In case the Tribunal does not agree you were unfairly dismissed in February 2013, tour alternative argument of claiming constructive dismissal based on a letter of resignation in July 2013 is a nice idea. You are allowed to run alternative arguments. For example you could say that my primary argument is that you were dismissed in February 2013, but if this is wrong your alternative argument is that the employer's recent actions were a breach of your employment contract serious enough to effectively force you out of your job. Theoretically this is fine - though it should be in the ET1 - but realistically I think it will be extremely difficult to show you have been forced to resign in a situation where the employer is offering you shifts. It seems to me that you could only succeed on the constructive dismissal claim if you have some bloody good evidence of racial discrimination serious enough to justify your failure to accept the shifts which were offered.

 

As others have said, this sounds like a difficult claim. As we do not have the full story or any details of the racial discrimination allegations it will help you to visit a local law centres or an employment clinic at a nearby CAB.

[becky2585]

SP, the individual is unlikely to be self employed - they will be most likely to be a worker, as reflected by the contract.

 

If race discrimination is proved, though, constructive dismissal can usually follow, so that's a good point.

[Temida]

Dear Emmzzi.

 

Thank you very much for your response.

 

If there is no dismissal of any kind in my case, what is it then - leaving me without any work in February 2013, which forced me to seek new employment?

 

I have not worked any shifts offered since I submitted my letter in April 2013 because, following my letter, there were other racial discrimination acts against me, which totally put me off and I did not want to work for that company anymore, so therefore, I have not worked for them since they left me without work (February 2013).

 

I am not claiming racial discrimination based on the fact that I was left without work in February 2013. There are also other issues involved, and unfair dismissal is a separate claim.

[Emmzzi]

it's a zero hours contract. that means you can have no shifts for a month or more. you have no claim.

 

you will also need more specific details of race discrimination to claim that - you are being too vague to convince me you have any case.

[Temida]

Dear becky2585 and steampowered.

 

Thank you very much for your prompt replies.

 

Despite the fact I was employed on a zero-hour contract, I strongly believe, that my employment status was that I was an employee (not a worker).

 

The employer did deduct national insurance and tax from my wages. I was provided with regular work. I was subject to the company’s grievance and disciplinary procedure as well as all of the other policies and procedures. I was bonded with confidentiality. I was not allowed to engage myself in any other employment relationship without the employer’s permission. The employer had a total control over the work, that was being undertaken. I had to do the work personally, and was not allowed to send any substitute.

 

So let’s say that the Employment Tribunal confirms that I was, indeed, an employee, was I not right to assume that I was dismissed in February 2013 when I was left without any work? I would like to point out that there is nothing in my contract of employment, which says about the way, in which the employer can terminate my contract. I also know, that there were shifts available in February 2013.

 

I think the idea, which steampowered put forward, that the offer of shifts in April 2013 can be treated as a fresh offer of employment seems quite nice to me. But in this case is it possible to base my constructive dismissal on the facts that happened before April 2013 – in the “old” employment?

 

The major grounds, on which I could base my constructive dismissal, happened before April 2013, for example in July 2012 I raised an official grievance and had a grievance meeting. Up till today I have not got any response to my grievance. This is only one example of the employer’s bad conduct.

 

I would say that the events, which happened after April 2013 were “the last straw”, but the major issues happened before April 2013.

 

My common sense is also telling me, that if, let’s say, I submit the resignation letter now and, as a result of that letter, I claim constructive dismissal, the Employment Judge may say: “if the employer’s conduct was so bad, why on earth did you want to come back to work, and in April 2013 you sent them a letter requesting to immediately bring you back to work?”

 

My answer to that question would be – I did it for the vulnerable people I worked with. The issues with the employer were one thing, but during the course of my employment (October 2011 – February 2013) I worked with people with learning disabilities, with whom I managed to establish an exceptional relationship of confidence and trust. It was only for the Service Users, that I wanted to come back.

 

Even now, in my new job with a different care provider, I still happen to see the people I used to work with, and my heart is breaking when they are coming up to me asking me when I will be working with them next. I feel like crying having to tell them, that I will no longer be coming to work in their house. And I have not done anything wrong in terms of my work performance. There have never been any complaints as to my work, no warnings, no disciplinary procedure taken against me. All of the problems arose, because the employer was discriminating against me, and I decided to take action.

 

If I may ask for one more piece of advice, I would like to know, if I submit a letter of resignation now, do I need to amend my ET1 form in any way to be able to claim constructive dismissal?

 

I already claim unfair dismissal in my ET1 form, but this is based on the fact, that I was left without work in February 2013.

 

I have a CMD in the end of July so I am not sure if, following my resignation letter now, I should amend my ET1 form in any way, or can I just simply explain to the Employment Judge in my CMD of what has happened since I submitted my original claim, and that I would like to claim constructive dismissal as well?

 

Thank you very for your further advice.

[Temida]

Dear Emmzzi.

 

As you are still not willing to accept, that this is not the actual contract of employment that matters, but the true relationship between an employer and an employee, please read the St Ives v Haggerty case, where a casual zero-hour worker had been granted, by the ET as well as the EAT, the status of an employee!

 

The race discrimination part of my claim was not the purpose of my question here, as it was unfair dismissal I was enquiring about, so therefore, race discrimination has nothing to do with my question, and I will say nothing about it as it would have been too long to explain everything.

[Emmzzi]

A zero hour contract is just that. You can argue it until you are blue in the face, but you have no case here.

 

Yes, no case, EVEN FOR EMPLOYEES.

 

You didn’t like the contract, you shouldn't have accepted it, and kept looking for a job with guaranteed hours.

 

The case you have quoted is generally used to demonstrate continuity of service for casual workers and as such is irrelevant to your situation btw.

[steampowered]

Regarding zero-hour contracts, there is case law suggesting that you can claim you had regular hours if the contract does not match up with reality. See http://www.hilldickinson.com/publications/employment_and_pensions/2012/august/zero_hours_and_employment_stat.aspx. However the point made by Emmzii is a fair one ... the Tribunal will start from the position that you were a flexible worker and you will need to convince them otherwise. Don't get complacent about this. Although if the employer wanted to raise this as an issue it should have been on the ET3.

 

Regarding the constructive dismissal aspect, I can only see two viable claims here. (1) that you were unfairly dismissed in February 2013; and (2) the alternative argument that you were constructively dismissed in April 2013 due to racial discrimination. I know these arguments are slightly inconsistent, but you are free to argue them both as alternatives and let the Tribunal decide. It is OK to say that your primary argument is (1), but if the Tribunal disagrees with that then you will rely on (2).

 

I don't think writing a resignation letter now would help. If you tried to resign in July that would undermine your argument that you were unfairly dismissed in February 2013. It could also undermine your constructive dismissal case, since for CD you are expected to resign promptly following the events complained of else you might be deemed to accept the employer's breach of contract. It would also raise the question of why you had not been accepting shifts if you were still employed. It would make for an interesting cross-examination if this reaches Tribunal. I think it would be better to rely on resignation by conduct ... you do not need a formal letter if its clear from your conduct that you had resigned, very clear here as you weren't accepting shifts.

 

Regarding amendments to the ET1, these can be tricky. There is a limitation issue since amendments are subject to the three-months-minus-a-day time limit. You could add claims resulting from events within the time limit ... but if its already clear that you are claiming UD and racial discrimination then personally I would leave it be. It is not ideal that you ticked the box about still being in employment, but as a litigant-in-person I think you can get away with this and amending would probably draw attention to it.

[Emmzzi]

you seem to be getting the same advice here. I am not sure if yiu are confusing the right to claim unfair dismissal, which you have, with unfair dismissal itself, which there has not been.

 

http://www.thelawforum.co.uk/can-unfair-dismissal-be-followed-constructive-unfair-dismissal

[Temida]

Dear steampowered.

 

Thank you very much for your advice.

 

So I think I'd better leave everything as it is and do not send any resignation letter now.

 

I will now concentrate on preparing my case, and in the CMD, in regard to the unfair dismissal part of my claim, I will say that my primary argument is that I was dismissed in February 2013, but if this is wrong, my alternative argument is that the employer's actions were a breach of my employment contract serious enough to effectively force me out of your job.

 

Thank you

[Temida]

Dear All.

 

I just wanted to provide some feedback on the issues I raised above in this thread.

 

I have had a Case Management Discussion with the Employment Judge and my former employer today, and, despite the fact, that I was employed on a zero-hour, casual, bank staff contract, the Employment Tribunal Judge did not, in any way, undermine my claim for unfair dismissal, nor said that I did not have any legal rights to claim unfair dismissal because I was employed on a zero-hour contract. I am, therefore, proceeding with that part of my claim

[steampowered]

OK, well done. It might be a sensible time to make a settlement offer.

[Emmzzi]

Dear All.

 

I just wanted to provide some feedback on the issues I raised above in this thread.

 

I have had a Case Management Discussion with the Employment Judge and my former employer today, and, despite the fact, that I was employed on a zero-hour, casual, bank staff contract, the Employment Tribunal Judge did not, in any way, undermine my claim for unfair dismissal, nor said that I did not have any legal rights to claim unfair dismissal because I was employed on a zero-hour contract. I am, therefore, proceeding with that part of my claim

 

 

I am unsure what you think the purpose of a CMD is, but it isnt to determine if your claim is likely to success. It may determine if you are allowed to apply - which you knew already? But because you are allowed to *claim* unfair dismissal it does not mean it has happened.

 

http://www.adviceguide.org.uk/england/work_e/work_problems_at_work_e/work_employment_tribunals_e/preparing_an_employment_tribunal_case.htm#what%27s_a_case_management_discussion

 

A case management discussion will decide on how the case should be run, and what the timetable for the case should be. They are often held in more complicated cases like discrimination cases. A case management discussion will decide things like:

 

• what the issues in the case are
  
• what orders should be made about documents and witnesses
  
• how long the full hearing should be, and when it should happen.
  

If you are made an offer before the full hearing you should seriously consider taking it.

[Doingmybest]

What happened?