Background:

The claimant regularly worked for the respondent, in their hotel, as a kitchen porter.  The claimant signed an agreement stating he wished to remain as a casual worker but he regularly worked 36 hours per week and in practice received payment for his breaks. The claimant was placed onto furlough as a result of the pandemic.

When reopening, there was notification of potential redundancies to ensure economic viability.  In relation to the claimant’s department it was being reduced from 21 full-time equivalents to 11. At individual meetings the claimant indicated a desire to be made redundant, yet the respondent sought to preserve the roles.  Subsequently, the claimant stated he would accept 24 hours to ensure that nobody lost their role.  The new contract stated that it was an employment contract for 24 hours per week, any shift more than 6 hours would require a 20 minute rest break and that no payment would be received for the rest break.

The claimant submitted a grievance in July 2021 stating he was unhappy with the contract, that he was told it would return to ‘normal’ after Covid-19, he was coerced to sign the contract and that he was entitled to paid breaks. The grievance was not upheld and the appeal was dismissed. A claim was brought in relation to the breaks, holiday pay and the amount of furlough pay received.

Outcome:

The Tribunal found that the claimant’s acceptance of the terms demonstrated that he was aware of its contents.  This included a clause that it superseded all other contractual arrangements.  It was clear and unambiguous in stating that the claimant would not be entitled to paid breaks.  Therefore, there was no breach of contract.

The claimant stated that he did not receive the required rest breaks between shifts under the Working Time Regulations.  The respondent conceded this was the point but that the claimant played a part in this by swapping his shifts.  The Tribunal found that there were instances of less than 11 consecutive hours rest being given in a 24-hour period. However, bearing in mind the flexibility the claimant requested it was found that no award was required.

On the furlough pay, it was found that there was a slight discrepancy of £23.89 which the respondent agreed to.

Practical Guidance for Employers:

This case demonstrates the flux which occurred during the pandemic which had the effect of altering contractual arrangements as a result of changes that needed to be made.  The change of contract which was instigated by the claimant signing the contract put forward by the respondent was to be treated like a contract at any other time.  Therefore, the fact that it concluded an express term that employees were not entitled to paid breaks made it clear so that the claimant could not seek them at a later point.

NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/