Zero-hours worker entitled to £4,000 despite finding another job

EAT dismisses appeal, ruling company should have paid restaurant worker her average wage

A college student on a zero-hours contract is due more than £4,000 in unpaid wages, despite taking up a new full-time job midway through a nine-month suspension from her role, the Employment Appeal Tribunal (EAT) has decided

The EAT ruled that Demitchie Obi’s contract with restaurant Rice Shack allowed her to seek other employment. The company could also not be certain that she would have turned down shifts after she started her new role because it offered her no work for almost another four months, the EAT said. 

Obi began working on a zero-hours contract for Rice Shack’s Manchester food outlet in December 2015, fitting this work around her college commitments. She typically worked 15 and a half hours a week, earning £102.50 on average. 

In March 2016, Obi was suspended following an altercation at work. Rice Shack said it would begin a disciplinary investigation and suspended her. There was nothing in Obi’s employment contract giving Rice Shack the right to suspend her from work and the company accepted at the initial tribunal hearing that it could not suspend her without pay.  

Although attempts were made to set up a disciplinary hearing, these petered out. In May 2016, Obi submitted a written grievance, including complaints that she had been suspended without pay. A grievance hearing was held in early June, although Obi later had to chase for meeting notes. 

Obi took on a full-time role with a call centre company on 22 August. She was offered no shifts with Rice Shack until it contacted her on 13 December 2016. She responded three days later, saying she was happy to return to work provided she was paid for the time she had been suspended. She also reminded the company that she was still waiting for the outcome of her grievance hearing. 

Obi had lodged an employment tribunal claim for unauthorised deductions from wages in July 2016 and, in September, was asked to produce a schedule of her losses along with details of her attempts to mitigate. Obi provided no details of loss mitigation, despite her call centre role paying more than her Rice Shack job. 

Rice Shack became aware of Obi’s new job around January 2017 and the full tribunal hearing went ahead in February.

Although Rice Shack accepted that it needed to pay Obi her average wages, it argued that it only needed to do so until she took up her new role in August. Disagreeing with the company, Manchester Employment Tribunal decided Obi, who represented herself in front of both the original tribunal and the EAT, should be paid her average wages for the full nine-month suspension period, which came to £4,087. 

The EAT upheld the tribunal’s decision. Judge Eady remarked that, while an employer might be entitled to consider it a breach of contract if an employee found another job in many cases, “I cannot, however, see how that would work with a zero-hours contract of the nature in this case”.

“Ultimately, the problem [Rice Shack] has identified in this case is entirely one of its own making,” she added. 

According to Office for National Statistics figures released in April, zero-hours contracts account for 6 per cent of all employment contracts in the UK, while 901,000 people have a zero-hours job as their main employment.