Mr JA Parry v Orient Direct Limited t/a Berlitz Manchester — 2021

The claimant, Mr JA Parry, worked as a language instructor for the respondent from July 2010. The tribunal accepted that over time Mr Hall regularly timetabled him for work, often 25 hours a week, and that the parties developed a working arrangement under which he was offered work regularly and would request leave when needed. The tribunal rejected the proposition that the original zero-hours wording meant there was no mutual obligation in practice, and found that the factual reality of the relationship mattered more than the contractual label.

The tribunal found that on 22 August 2019 Mr Hall told the claimant there would be no work for the following week, but that this was not an express dismissal. Although the claimant believed at the time that he was being dismissed, the tribunal found the words used were insufficient to amount to termination of employment. It also relied on the claimant's subsequent conduct, including continued messages about leave and pay and the fact that he was told on 3 September that he was still "on the books", as showing that he did not treat the relationship as ended on 22 August.

The tribunal went on to find that the respondent had committed a fundamental breach of the implied duty of trust and confidence by failing to offer the claimant work and failing to explain why he was being treated differently after 22 August 2019. It found that the claimant had been left without income and without clarity about when he might return to work, and that this breach was sufficiently serious to justify resignation. The tribunal held that the claimant accepted that breach by presenting his ET1 claim form on 27 November 2019, and that this was within a reasonable time in light of his sabbatical in Japan.

On that basis, the tribunal held that the claimant had been constructively dismissed and that his unfair dismissal claim succeeded. Because the respondent denied dismissal altogether, it did not establish a potentially fair reason or any dismissal procedure, so the unfair dismissal claim was upheld under s.98 of the Employment Rights Act 1996. The tribunal did not decide compensation at this stage and directed the claimant to provide an updated schedule of loss for a later remedy hearing. It separately dismissed the holiday pay claim for £446, finding that the claim was not made out on the evidence.