Mr S Martyn v Bardwood Support Services Limited — 2020

Mr Simon Martyn brought claims pleaded as unfair dismissal, arrears of pay and breach of contract against Bardwood Support Services Limited. At the first case management hearing the tribunal said there was no jurisdiction to hear unfair dismissal because he had not completed the requisite service period, and the case proceeded only as unpaid wages and/or breach of contract. The central issue was whether he had a binding 39-hour contract at £9 per hour or was engaged on the Respondent's terms for assignments at varying rates.

The tribunal accepted that the Respondent employed the claimant and that he had signed the terms of engagement on 11 February 2019, but it did not accept that those documents or the text messages created a guaranteed-hours contract. It found the wording of the terms of engagement showed work would be offered by assignment, that there could be periods when no suitable work was available, and that the worker was not obliged to accept assignments. The evidence showed most work was at Wilco Newport at £8 per hour, with different rates for other sites such as Wilco DC and later £8.21 per hour, which was inconsistent with a single guaranteed rate of £9 per hour for 39 hours each week.

The tribunal also rejected the claimant's case that the February messages with Dane Jones amounted to a binding offer of employment by Mitie on 39 hours per week at £9 per hour. It treated the later June 2019 emails about possible full-time work at Wilco DC as further discussion about placements rather than a contractual variation. When matters broke down at the end of June 2019, Mitie indicated it did not wish to assign the claimant to one of its sites, but the tribunal found that did not alter the underlying contractual analysis. Because the claimant was found to have no entitlement to guaranteed hours, the breach of contract claim failed and the unlawful deduction of wages claim failed on the same basis.

The tribunal added that the relationship had ended unsatisfactorily and that the Respondent should reflect on continuing to use the terms of engagement while saying individuals were employees under a contract of employment. The formal judgment therefore dismissed the breach of contract and unlawful deduction of wages claims.