Ms P Ferreira v Central Facilities Group Limited — 2020

Ms Ferreira worked for Central Facilities Group Limited at Roomzzz in Nottingham as Assistant Head Housekeeper after a TUPE transfer in December 2016, having started in July 2015 with WGC. The tribunal found that her offer letter said the salary for the post would be based on a 35-hour working week, and that the written terms referring to normal hours, extra hours and overtime did not convert the role into a zero-hours arrangement. It accepted that the respondent later treated the claimant as if she were on flexible hours, but held that this did not override the contractual documents.

On the pay issues, the tribunal found that the claimant had not impliedly agreed to vary her hours by continuing to work fewer than 35 hours per week after the transfer. It accepted that she had objected to what she was told after transfer, and held that her conduct was explained by the respondent's mistaken understanding of her contract and by her reluctant acceptance of that mistaken position, rather than by agreement to new terms. It therefore held that paying only for hours actually worked from the latter half of 2017 until termination was a breach of contract and an unauthorised deduction from wages. The claimant had sought back pay, and the respondent had offered £901.80 as a goodwill gesture, but the tribunal said the quantum of any loss would need to be addressed at a remedy hearing if not agreed.

On duties, the tribunal held that the contract and job description allowed some flexibility and occasional cleaning work, including periodic cleaning and cover for absence, but did not permit PA or RA cleaning to become a regular feature of the role. It found that the claimant was told she would need to do such cleaning to make up her hours, and that this was a material change to the work she was expected to do. The tribunal did not treat the internal change of job title to 'Supervisor' as a breach, but it found that the respondent's stance on duties was an anticipatory breach of contract and a breach of the implied term of trust and confidence.

The tribunal also considered the grievance process, holding that although some parts of the handling were not ideal and some conclusions were reached without medical evidence, the claimant was given a reasonable opportunity to present her grievance. It held that the overall conduct on pay and duties, reflected in the grievance and appeal outcomes, was enough to amount to a repudiatory breach. The claimant resigned on 9 May 2019, within days of the appeal outcome, and the tribunal held that she had not affirmed the contract before resigning. It therefore found that she had been dismissed within section 95(1)(c) ERA 1996 and that the unfair dismissal complaint succeeded. The holiday pay complaint had been withdrawn and was dismissed accordingly, and the case was listed for a later remedy hearing.