Claimant v East Sussex National Ltd — 2022

Mr Humble had been employed by East Sussex National Limited as a kitchen porter from 8 March 2019 under a zero-hours contract. On 17 June 2021 the parties orally agreed a temporary variation from 1 July 2021: he would work a 40-hour week, split between kitchen and maintenance duties, receive a salary of £21,000 per year for maintenance work, and carry out the maintenance role on a trial basis until November 2021. The tribunal rejected the case that this was a wholly separate maintenance contract and found that the parties had varied the existing March 2019 contract.

The tribunal found that no complaints about the quality of the claimant’s work were made before 24 August 2021 and that there was no evidence of any documented performance review or instances of sub-standard work. Although Mr Enriquez genuinely believed the claimant’s lack of a driving licence and practical availability caused difficulties, the tribunal held that the respondent did not warn the claimant, give him an opportunity to respond, or allow time to address those concerns before ending his maintenance work on 25 August 2021 and reverting him to kitchen porter duties without notice.

The tribunal held that the respondent’s conduct amounted to a repudiatory breach of the implied term of trust and confidence, that the claimant accepted that breach by resigning on 25 August 2021, and that he was therefore constructively dismissed and unfairly dismissed. It also held that the claimant was wrongfully dismissed without the two weeks’ notice implied into the varied contract, and that no ACAS uplift was appropriate because it found no disciplinary or culpability element to the respondent’s conduct on the facts.

On remedy, the tribunal awarded £690.10 net for notice pay, a basic award of £732.40 gross, and a compensatory award of £1,424.25 net for the unfair dismissal. It also awarded £1,464.80 gross under section 38 of the Employment Act 2002 because the respondent had failed to provide written particulars of the changed terms of employment. The tribunal found that the claimant obtained new employment on 27 September 2021 and made no reduction for contributory conduct or loss of statutory rights.