EMPLOYMENT TRIBUNAL FINDS CASUAL WORKER HAS RIGHT TO REDUNDANCY PAY

Following advice and support provided by Zero Hours Justice, a zero hours worker has won her employment tribunal claim against Turner Contemporary for redundancy pay.

In January 2021, at the height of the Covid pandemic, the Margate-based art gallery laid off around 40 casual workers following restructuring. Zero Hours Justice was contacted by a number of casual workers, who had worked for Turner Contemporary for a number of years on a regular basis and felt that they should have received redundancy pay.

Casual workers, who are supposed to work on an ad hoc basis, do not usually benefit from employment rights such as redundancy pay and protection from unfair dismissal.  Some of the casual workers who contacted Zero Hours Justice were able to reach settlements using Acas’ early conciliation service. 

However, one casual worker, Jan Wheatley (“the claimant”), was so outraged at the treatment by Turner Contemporary (“the respondent”) that she decided to go to court to expose it. She had been working for the art gallery for 10 years when her contract was terminated.

The respondent’s casual worker agreement made it clear that work was not guaranteed and workers were not obliged to accept work when offered. However, the employment tribunal found that the wording of the agreement did not reflect the claimant’s day-to-day working reality and that, in practice, she was an employee and so entitled to redundancy pay.

Ms Wheatley said: “There is no way I would (or could) have had the confidence and strength to attend a tribunal hearing, without the support and guidance of Zero Hours Justice.

​“I was advised by ACAS that representing myself would not be wise, and that the respondent's attempts to settle would be seen as conciliatory; I did not have the experience or skills required to present an adequate case and that would put me at risk of having to pay the respondent's legal bill after almost inevitably losing.

​“Although Zero Hours Justice was unable to provide legal representation, they were more than willing to read over my notes, make suggestions and give valuable feedback and guide me through the legal jargon with expert knowledge and the crucial insight necessary for me to navigate a completely unfamiliar and complicated system.

​“Zero Hours Justice may be best known for their campaign activity but they were the backbone in my fight, and played a very real, very substantial role in my subsequent win.”

It’s important to note that this judgement in Wheatley v Turner Contemporary (2022) turned very much on the specific circumstances of the claimant’s employment. It does not create a general rule for casual workers and redundancy payment. But hopefully, it can show how casual workers and other workers on zero hours contracts may, in reality, be employees and entitled to the associated statutory rights. 

​Some of the key facts that led to the judge deciding that the claimant was an employee were as follows:

• Contrary to what her contract said, she was not engaged “from time to time” but on an ongoing basis. Each occasion that the claimant worked was not separate and severable, nor was the work on different exhibitions and projects. The arrangement did not terminate at the end of each shift or exhibition or project and no P45 was issued. The work developed over time and built on her training and experience. The claimant’s participation was an integral part of organisation and its output.
• Although the claimant was on a zero hours contract, with no obligation to accept work and no guarantee of work, the contract stated that once work was accepted, there was an obligation to do it unless sick or injured. The respondent’s flexibility in having other staff cover for absences unrelated to health did not negate this obligation. Once availability was given, rotas were deemed final. There was an obligation on the claimant to indicate her availability for work and some obligation on the respondent to offer work to those who had said they are available. There was a mutual obligation to honour the booking, including payment for the work – this was seen in the respondent feeling obliged to pay for work already agreed but cancelled as a result of the pandemic and lockdown. The lack of obligation either to offer or to accept work “was not sufficient to negate an employment contract provided there is some obligation to work and for the employer to provide work and pay for it”.
• There was a compulsory training and training that was essential to do the job and work was offered based on experience and training.
• There was some obligation on the claimant to provide availability to work and reply to emails about availability for work: “The reality is she was obliged to keep in touch and provide her availability on a very regular basis and to offer some reasonable degree of availability”. The judge said that this could be inferred from the tone of correspondence and the fact that the claimant compensated for lack of availability by making herself indispensible in other ways.
• The claimant was well integrated into the organisation. This included: having her own uniform and security pass, which were not handed back at the end of each shift; having a staff discount; being included in all staff events, parties, overseas trips and being given training opportunities; being consulted as part of staff consultations; being described as part of the team on the Respondent’s website; being required to keep in touch fortnightly about availability and to check the email; being offered work that was limited or ring-fenced for those in the same role.

The judge also concluded that section 212(3) of the Employment Rights Act 1996 applied to closures of the gallery in-between exhibitions to preserve the claimant’s continuity of service as the closures only led to temporary cessations in work. Once the gallery reopened, the claimant’s was offered work. 

Turner Contemporary has decided not to appeal the decision.

​For more information or advice about zero hours contracts, please feel free to call our free national helpline or contact us via our online form. ​