The claimant had been employed as a security guard by a security company for just over two years. He was recruited, with another employee, to cover 102 hours at a Morrisons' store in Brighton and worked principally at that store, 48 hours a week. At the time of his appointment, the claimant was sent a statement of main terms of employment which included a requirement for him to work at any of the company's assignments, at varying rates of pay depending on the assignment. On hours of work, it stated: "Your working hours will be specified by your line manager".
The claimant typically received a weekly text from his area manager telling him or confirming where he was to be working the following week. If he did not receive a text, he would contact the control centre and be told where he would be working the next week. As well as being based on the contract at the Brighton store, the claimant would also cover absences at other Morrisons' stores.
At the beginning of October 2011 Morrisons requested (as they were entitled to, under their contract with the security company) that the claimant be moved from the Brighton store. The claimant moved to Morrisons' Seaford store, where he worked for the next two to three weeks. But then the claimant was told that the manager of the Seaford store was also unhappy with him and, because no alternative work could be found for the next few days, arrangements were made for the claimant to use up his outstanding holiday entitlement. It was then arranged that he would be put on shifts at another of his employer's assignments, but shortly after he started work there the claimant told the employer he was resigning because he was not being offered enough hours. During the same conversation he was offered a full-time position of 38 hours at another store in Brighton. But a week later the claimant wrote to the employer confirming his resignation.
The Tribunal rejected various claims, including a constructive unfair dismissal claim, on the basis that the statement in the terms of employment that his working hours would be specified by his line manager was not displaced by the fact that the claimant had worked a 48 hour week for his employer for two years. It described the "no work no pay" arrangement as not uncommon in security contracts.
The EAT overturned the Tribunal's decision. Although this was not a case about employment status – it was accepted that the claimant was an employee, the principles established by the seminal Autoclenz decision of the Supreme Court in 2011 apply to any question of whether the terms an individual is employed on reflect the true agreement between the parties. A tribunal must look at all the evidence – how the parties conducted themselves in practice as well as the written terms, and the relative bargaining power of the parties will be relevant in deciding whether the written terms represent what was in fact agreed. Here, the EAT decided, the true agreement between the parties was that the claimant did have a contractual entitlement to work 48 hours each week. He could therefore bring claims on that basis.
