Today's article concerns what can happen when an employee's hours are reduced and the employee considers his/herself to be dismissed under the Unfair Dismissals Acts.


EAT Case

Bruno Patrizzi v The Eden Take Away Limited UD203/2009

Facts

The claimant (the employee) worked in the respondent’s (the employer) fast food restaurant from March 2007 until October 2008.

The employee claimed he worked 80 hours per week, had no written contract of employment and never received payslips. The employer rejected each of these claims. The employer provided a copy of both the contract of employment and the payslips.

The employee claimed that his hours were only reduced to 39 hours per week when his brother, a former employee of the employer, who opened a fast food restaurant in competition with the employer. The employee was told to discourage his brother from opening this business.

However, from the beginning of October 2008, the opening hours of the restaurant were reduced further and, in common with other workers, the employee’s hours were reduced to 28 hours per week.

The employee then understood he was being let go and wrote to this employer on 8 October 2008 seeking his P45 on the grounds that he had “been let go since 5 October 2008 due to work being unavailable”. The employer did not issue a P45. The employer stated that the employee asked for two weeks off and the employer agreed to hold his position open for him.


Determination

The Employment Appeals Tribunal (the “EAT”), which was chaired by Mr P O’ Leary BL in Tullamore on 9 September 2009 and 27 January 2010, found that the employee was not dismissed. The EAT found that a claim under the Unfair Dismissals Acts did not arise. However, the EAT did acknowledge that there was a considerable degree of conflict in the evidence given by the parties.


Legal Review

Of interest to employers in this case is that the EAT stressed that in the current economic climate it was common case for working hours to be reduced and the EAT was satisfied that the actions of the employer in reducing hours did not amount to a dismissal. Things may have been different if the employee actively resigned.


Lay-Off / Short-Time

A lay off occurs when an employer has not enough work to keep an employee occupied, and instead ceases to offer them work for a limited period. In this case, the employee was instead put on short time, but appears to have mistaken the short time/lay off as a dismissal.


Conclusion

An employer should be clear with employees when dismissing them, placing them on short time or placing them on lay off. This case may have been preventable if the employee had understood that he was not dismissed. Although the employer won its case, it still incurred the inconvenience and expense of a two day trial.