Mr I Sardar v Ixora Healthcare Ltd — 2023

The claimant worked as a healthcare assistant from 28 August 2018. The tribunal found that a second statement of terms and conditions signed on 13 May 2019 by the claimant and the registered manager, Ms McColgan, was a binding contract and that it provided for normal hours of 30 per week, with actual hours and days to be agreed on rota. It rejected the respondent's case that the claimant remained on a zero-hours arrangement, and held that later lack of awareness by Ms Henshall or Mr Mathieson did not change the contractual position.

On the discrimination claims, the tribunal rejected direct sex discrimination because there was no evidence that sex explained any of the treatment relied on. It rejected direct race discrimination because the named comparators were not shown to be in materially similar circumstances and the claimant did not establish the additional facts needed to shift the burden of proof. The tribunal found that the leave refusal relied on by the claimant did not occur in July 2021, because Ms Henshall was not employed then, and instead occurred on or shortly after 28 October 2021. It also found that the NVQ issue was not as alleged: the respondent had contributed to the training costs, but there was no evidence that it refused to fund a resit because of race or sex, or that it gave the training provider the misinformation alleged.

The tribunal accepted that the claimant told Ms Henshall he was being discriminated against over holiday, which it treated as a protected act for victimisation purposes, but it held that the reduction in hours and the later refusal or handling of leave and training were not caused by that protected act. Because the discrimination and victimisation claims failed on the merits, the tribunal did not need to decide the time-limit issue.

For dismissal, the tribunal found that the claimant's hours were reduced below 30 per week from mid-September 2021 and that he received no shifts at all after 5 March 2022. It held that this breach of the implied term of trust and confidence was sufficiently serious to justify resignation, and that the claimant resigned in response on 5 May 2022. The tribunal therefore found a constructive dismissal within section 95(1)(c) ERA 1996 and held it was unfair under section 98 ERA 1996. The notice pay claim also succeeded as a breach of contract, with three weeks' notice due, but quantum was left to a remedy hearing.

On the monetary claims already quantified, the tribunal awarded £667 for accrued but untaken annual leave, on the basis that entitlement should have been calculated by reference to the contractual 30-hour week. It also awarded £3,514.50 for unauthorised deductions from wages, calculated as 390.5 unpaid hours at £9 per hour after allowing for holiday hours already paid and a four-week period when the claimant had said he was only available on Saturdays and Sundays from 8am to 5pm.