News about zero hours contracts continues unabated. After I reported last month that the Chartered Institute of Personnel and Development had conducted research suggesting that many people are happy with zero hours contracts, Vince Cable has performed the sort of volte face that seems to come easily to politicians by announcing that the crackdown on zero hours contracts that he had championed just weeks earlier will not now take place. However there is to be a Government consultation.
In G4S Secure Solutions (UK) Ltd v Alphonso the Employment Appeal Tribunal has looked at what amounts to a zero hours contract in the context of procedural issues as to whether a claim was in time or not and whether the appeal could proceed despite having the employee failed to comply with the Tribunal’s orders. As I have mentioned before zero hours contracts are not defined in statute and it is therefore unsurprising that we have seen a rash of cases dealing with legal issues concerning their operation in practice.
Mr Alphonso originally started work as security guard for G4S in 2002. In 2011 he asked to move to a zero hours contract for personal reasons; this was agreed and put in place on 14 November that year. He was thereafter offered work twice, but then in May the next year he was sent his P45. It was automatically generated because he had not worked for three months and his screening for suitability to work as a security guard had expired. He presented a claim for compensation for unfair dismissal. The question was, when did he stop being employed – when he received his P45, or when he transferred to a zero hours contract? G4S said his zero hours contract meant there was no obligation to offer work, or for him to take it, so it was not an employment contract but a self-employed arrangement.
Unsurprisingly the Employment Appeal Tribunal held that it was not as simple as that. Mutuality of obligation is only part of the equation. The Employment Tribunal judge had failed to “examine the detail which is required to determine whether or not there was a contract of employment in this case” and so while there was insufficient material available to determine the status of the contract it was equally inadequate merely to assert that the contact was a zero hours one and therefore without protection from unfair dismissal, the stance taken by G4S.
The case was returned to the Employment Tribunal to look at all the facts to see if there was an employment contract in existence in May 2012.
Another point dealt with on appeal was whether Mr Alphonso’s appeal should be allowed to proceed. After G4S appealed against the Employment Tribunal’s decision to allow his unfair dismissal claim to proceed, he failed repeatedly to file a response to the appeal. According to His Honour Judge McMullen QC Mr Alphonso “was let down by himself and by the representation which he had”. The Registrar, quite properly according to the Rules, debarred him from taking part in the appeal. However the Judge allowed “relief from sanctions”, applying “the overriding objective that the substance of the case be looked at with the assistance of representation…”. The issue is very topical since, in the civil courts and following the costs reforms proposed by Lord Jackson, there has been a punitive approach taken to failure by a party to comply with orders and directions. This has been best illustrated in the “Plebgate” libel case brought by MP Andrew Mitchell in which his recoverable legal costs have been limited to only the court fees as a result of a failure by his lawyers to submit a costs schedule on time. This controversial decision has come in for criticism from many legal quarters, including other judges. An outspoken opponent is former employment judge and legal guru Kerry Underwood who is spearheading opposition to such a restrictive approach. In one of his recent blog posts he has referred to a decision of Lord Justice Bowen dating back all the way to 1885 which surely and succinctly summarises what should be the correct approach to such matters.
(I)t is a well-established principle that the object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights…I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace.