Working Time Regulations Detriment/Dismissal
Part V Employment Rights Act 1996 (ERA) covers situations where a worker is protected from suffering a detriment in employment. The right not to be unfairly dismissed (employees only) is found in Part X.
S45A ERA states as follows:
45A. Working time cases.
(1). A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker-
(a).refused (or proposed to refuse) to comply with a requirement which the employer imposed (or proposed to impose) in contravention of the Working Time Regulations 1998,
(b)refused (or proposed to refuse) to forgo a right conferred on him by those Regulations,
S 101A ERA states as follows:
101A Working time cases.
(1). An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee-
(a). refused (or proposed to refuse) to comply with a requirement which the employer imposed (or proposed to impose) in contravention of the Working Time Regulations 1998,
(b). refused (or proposed to refuse) to forgo a right conferred on him by those Regulations…”
In the recent Employment Appeal Tribunal case of Wladyslaw Pazur v Lexington Catering Services Ltd UKEAT/0008/19 the EAT looked at the approach that a Tribunal should take to such claims and in particular what was required to demonstrate refusal or proposed refusal.
What was it about?
The Claimant, who worked as a Kitchen Porter, had been denied his right to a rest break (contrary to Regulation 10 WTR) when assigned to work for a client. When he subsequently refused to return to the client, he was first threatened with dismissal and then dismissed by the Respondent. The Claimant brought ET proceedings contending the threat of dismissal had amounted to an unlawful detriment, contrary to Section 45A ERA, and that he was then dismissed for an automatically unfair reason for the purposes of Section 101A ERA.
The Employment Tribunal accepted that requiring the Claimant to return to the client amounted to the imposition of, or proposal to impose, a requirement in contravention of the WTR, however the Tribunal was not satisfied that the Claimant had provided sufficient evidence to establish his refusal to return to work for the client was a refusal for the purposes of Sections 45A or 101A ERA.
What did the Employment Appeal Tribunal think?
The Employment Appeal Tribunal allowed his appeal on detriment but remitted the unfair dismissal claim to the Employment Tribunal. Before doing so HHJ Eady QC helpfully reviewed the authorities in this area and in particular what was required to establish that a Claimant had ‘refused’.
It was suggested by the Claimant that all the Tribunal had to do was in effect infer refusal from the fact that the Claimant had signified his unwillingness to agree to work when this would necessarily entail a breach of the WTR. It was not necessary for a Claimant to have specifically made an allegation to this effect.
HHJ Eady QC rejected this approach as if it was sufficient, as a matter of fact, for the Claimant not to comply with the requirement that the employer had imposed, or proposed to impose, in contravention of the WTR, there would have been no need for Parliament to have included the additional requirement that the worker had in fact ‘refused’ or ‘proposed to refuse’.
HHJ Eady QC made it clear that whilst it was unnecessary for the Claimant to specifically identify the alleged contravention of the WTR, the Claimant was required to tell his employer he was refusing or proposing to refuse for a reason which amounted to a breach of the WTR (in this case a failure to give a WTR rest break).
This case also highlighted the different causation tests which arise in detriment and dismissal claims. Detriment claims require that the employer is materially influenced (in this case by the refusal) whereas in dismissal claims the test is higher requiring the Tribunal to find that the refusal was the reason or principle reason.
On the facts found by the Tribunal there were two competing reasons one was the refusal the other was not. This presents no difficulty in proving detriment as the less exacting test is satisfied where there are two competing reasons. Not so for dismissal, which is why the question of dismissal was remitted to determine whether the refusal was the reason or principal reason for the Claimant’s dismissal.
What can we take away?
It might be expected that by simply not turning up to work after an employer had breached the WTR would be sufficient. It is not. This is something for the advisor to bear in mind when the client alleges dismissal or detriment for having failed to attend work after a breach of the WTR.