Zero-hours waitress loses unfair dismissal claim after redundancy exclusion
A waitress on a zero-hours contract who was excluded from a redundancy process has had her unfair dismissal claim dismissed, after a tribunal ruled she was never an employee.
2 min read · Last updated 18 May 2026
Key facts
- The claimant worked as a waitress on a zero-hours contract from 24 May 2015.
- From October 2018, the claimant worked only during university holidays, not during term time.
- The claimant's last shift was in early October 2020.
- The respondent conducted a redundancy process in December 2020 to February 2021, which did not include the claimant.
- The tribunal found the claimant was never an employee, only a worker, due to lack of mutuality of obligation.
- The claimant's engagement ended in October 2020, before the redundancy process began.
Timeline
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Engagement started
Claimant began working as a waitress for the respondent on a zero-hours contract.
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Statement of terms issued
Claimant received a document titled 'Statement of terms and conditions of employment for restaurant staff' describing her as an employee.
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University course started
Claimant began a university course at De Montfort University in Leicester, leading to a change in her working pattern.
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Last shift worked
Claimant worked her final shift for the respondent in early October 2020.
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Holiday pay paid
Respondent paid the claimant all outstanding shift pay and accrued holiday pay, treating her lack of availability as a resignation.
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Redundancy process started
Respondent sent 'at risk' letters to affected staff.
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Initial consultation meetings
Initial redundancy consultation meetings took place.
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Claimant queried redundancy
Claimant called the respondent to ask why she was not included in the redundancy process and was told she was not employed.
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P45 issued
Respondent issued a P45 to the claimant with a leaving date of 5 February 2021.
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Hearing
The employment tribunal heard the case via CVP at Watford.
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Judgment sent
Employment Judge Fredericks sent the reserved judgment dismissing all claims.
The legal issue
The tribunal had to decide whether the claimant was an employee of the hotel at the time of the redundancy process and furlough scheme, which would have entitled her to bring claims for unfair dismissal, a statutory redundancy payment, wrongful dismissal, and unpaid furlough pay.
The outcome
The tribunal dismissed all of the claimant's claims.
- The key reason was that the claimant was not an employee, but a worker, because there was no mutuality of obligation — the hotel was not obliged to offer shifts and the claimant was not obliged to accept them, especially after she started university and only worked during holidays.
- The claimant's last shift was in October 2020, and the hotel paid her all outstanding pay and holiday pay in November 2020, treating her lack of availability as a resignation. The redundancy process began in December 2020, by which time the claimant had already ceased working.
- No compensation was awarded as the claims were dismissed.
Lessons & takeaways
- Zero-hours contracts often mean you are not an employee, which limits your employment rights — you may not qualify for unfair dismissal or redundancy pay.
- If you stop taking shifts for a period, your employer may treat that as a resignation, ending the relationship even if no formal notice is given.
- A written contract that calls you an 'employee' is not decisive — tribunals look at the reality of the working relationship, especially mutuality of obligation.
- If you are not an employee, you cannot bring claims for unfair dismissal or a statutory redundancy payment, regardless of how the employer handles a redundancy process.
A zero-hours contract and the limits of employment rights
This case highlights a common trap for workers on zero-hours contracts: the belief that a written statement calling you an 'employee' gives you full employment rights. The claimant, a waitress who worked for The Aviator Hotel Ltd from 2015, was issued a document that described her as a 'part time employee'. But when a redundancy process took place in late 2020, she was not included. She brought claims for unfair dismissal, a redundancy payment, and unpaid furlough — only to be told she was never an employee in the eyes of the law.
The tribunal found that the reality of the relationship was different from the label in the contract. From October 2018, when the claimant started university, she only worked during holidays. The hotel was not obliged to offer her shifts, and she was not obliged to accept them. This lack of 'mutuality of obligation' meant she was a worker, not an employee. By the time the redundancy process began in December 2020, the claimant had not worked since October and had been paid all outstanding sums in November. The hotel treated her as having resigned, and the tribunal agreed that the employment had already ended.
What the hotel could have done differently
While the hotel successfully defended the claim, the situation could have been avoided with clearer communication. When the claimant stopped taking shifts, the hotel could have written to her formally to confirm the end of the relationship, rather than simply paying up and issuing a P45 later. A clearer paper trail would have avoided the confusion that led to the tribunal claim. However, the tribunal found that the hotel's actions were reasonable in the circumstances.
Why this matters for other workers
This case is a reminder that employment status is determined by the reality of how you work, not by what a contract says. If you have a zero-hours contract and your availability is irregular, you may not build up the continuity of employment needed to claim unfair dismissal or a redundancy payment. Even if you have worked for years, a long gap in shifts can break the employment relationship. Anyone in a similar position should seek advice early, especially if their working pattern changes significantly.
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