Tribunal Report: An example of why all staff should be given contracts

In February, the Employment Appeal Tribunal published its judgement in Wason & Wason v Holborn Community Association, which will be of particular interest to smaller charities that employ some staff on an informal basis

Victoria Willson
Victoria Willson

The story

Holborn Community Association, a small charity running a community centre and resource centre, employed Mr Wason as a cleaner and caretaker.

According to the tribunal's report, his mother, Mrs Wason, helped him with the cleaning under an ad hoc arrangement. Her employment was dependent upon the continued existence of his engagement as a cleaner.

After several years, the association decided that the contractual position in relation to the cleaning should be formalised and wrote to the Wasons.

A dispute developed, with the Wasons alleging that the association was trying to vary the cleaning employment contract against their will. Mr Wason was suspended (with pay) while the association sought legal advice.

After a few weeks, he was asked to return to work. He returned to the caretaking job but decided not to return to the cleaning job, and ceased to be paid for that work. A new cleaner was subsequently engaged. More than a year later, Mr Wason was made redundant from the caretaking job.

The Wasons brought claims of unfair constructive dismissal in relation to the cleaning job. Such claims require the employee to show that the employer breached their contract in such a serious way - known as a repudiatory breach - that they were entitled to treat themselves as having been dismissed.

Mr Wason also brought a claim of unfair dismissal and race discrimination in relation to his redundancy from the caretaking job.

The legal decisions

The Employment Tribunal found that the unfair constructive dismissal claims had been brought outside the relevant three-month time period and therefore could not proceed.

It rejected the Wasons' argument that they did not know their services had been replaced and therefore that the time period had not begun to run, and found that they must have known that they no longer had a cleaning job shortly after Mr Wason returned to the caretaking job.

It was not necessary, it said, for the association to inform him that it had accepted his 'repudiatory conduct' (meaning a failure to return to the cleaning job, despite having been asked to do so) in order for that acceptance to be effective. The tribunal found Mr Wason's redundancy to have been genuine and there was no race discrimination.

The Wasons appealed but the Employment Appeal Tribunal upheld the Employment Tribunal's decision and refused them permission to appeal any further.

Lessons for charities

While it is understandable that ad hoc working arrangements develop in small charities (where, as in this case, trustees are often volunteers contending with complicated legal issues), it is always advisable that such arrangements are clearly and formally documented from the outset.

By law, employees are entitled to receive a written statement of the main terms and conditions of employment within two months of commencement of their employment. If this is not provided, a tribunal could require the employer to pay either two or four weeks' pay to the employee.

Victoria Willson is a solicitor at Levenes Employment, third sector specialists

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