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:
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.
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