Threat to dismiss employee for refusing to work for client after Working Time Regulations breach was a detrimental act

EAT: threat was materially influenced by employee's refusal to work at site after rest break refused.

Under the Employment Rights Act 1996 ('ERA') workers are protected from detriment if they refuse to comply with a requirement that is imposed, or proposed to be imposed, by their employer which contravenes the Working Time Regulations 1998 ('WTR'). In order to benefit from the protection, the worker must clearly communicate that his or her refusal is materially based on the fact that the requirement contravenes the WTR.

If an employee is dismissed for the principal reason that the employee refused to comply with a requirement which contravenes the WTR, that dismissal will be automatically unfair under the ERA.

A recent case has considered these issues where an employer threatened to dismiss an employee after he complained about not being afforded rest breaks in accordance with the WTR and was subsequently dismissed.

Case details: Pazur v Lexington Catering Services Limited

Mr Pazur worked as a kitchen porter for LCS, who sent him to various sites. Mr Pazur complained about working on a site ('Site A') due to non WTR-related conditions in which he was asked to work. Separately, Mr Pazur was asked to work a shift on another client site, but left work 30 minutes early because he was refused a rest break by the chef ('Site B'). Mr Pazur complained to LCS about the chef's general treatment of him and specifically complained of the lack of a rest break.

A few weeks later Mr Pazur was asked to return to Site B by LCS. Mr Pazur explained that he did not want to work on Site B again and referred to his complaint about the chef and that he had been refused rest breaks. A manager of LCS then contacted Mr Pazur and said that he could either go to Site B as requested or he would no longer have a job. Mr Pazur explained he would rather have no job than go back to Site B, to which the manager responded: 'Your P45 will be sent to you good luck.'

LCS belatedly organised a disciplinary procedure, which Mr Pazur did not attend, and summarily dismissed Mr Pazur for gross misconduct. Mr Pazur brought a tribunal claim for wrongful dismissal, detriment and automatic unfair dismissal under s.101A ERA (because he did not have enough service for an unfair dismissal claim under s.94 ERA).  Specifically, Mr Pazur said that the message he received threatening him with losing his job was a detriment and that his subsequent dismissal was linked to his refusal to comply with a requirement which contravened the WTR and was therefore automatically unfair.

Tribunal decision

At first instance the tribunal upheld the wrongful dismissal claim on the basis LCS had no proper grounds for summarily dismissing Mr Pazur. The tribunal held that dismissal occurred when Mr Pazur's manager made the response referencing his P45, not when LCS later dismissed him for gross misconduct, which the tribunal found to be a 'sham' process.

Although the tribunal had accepted that LCS was proposing to impose a requirement on Mr Pazur to work without a rest break in contravention of the WTR, it noted that Mr Pazur had made a number of complaints about his treatment at Sites A and B that were not related to his WTR rights. As a result the tribunal considered that there was insufficient evidence that Mr Pazur had communicated a refusal to attend Site B because of a requirement in contravention of the WTR. For this reason his detriment claim failed.

Because of the evidence that LCS's decision to dismiss Mr Pazur was also for reasons unconnected to the WTR, including his refusal to work at Site A, the tribunal did not find that LCS's decision to dismiss Mr Pazur was for the principal reason of his refusal to comply with a requirement contrary to the WTR being imposed on him (i.e. to attend Site B), so his unfair dismissal claim also failed.

Mr Pazur appealed both decisions.

EAT decision

The EAT looked closely at what the tribunal had concluded about why Mr Pazur had refused to work at Site B.

In the part of its judgment where it considered the wrongful dismissal claim, the tribunal had found as fact that Mr Pazur's reason for refusing to return to Site B was due to the requirement to work without a rest break in contravention of the WTR. In considering the appeal the EAT reasoned that LCS could therefore, at best, argue that Mr Pazur had communicated his refusal to return to Site B both because of the contravention of the WTR and his more general concerns about the chef. In addition, the original tribunal had held that Mr Pazur's refusal influenced LCS's actions and in the view of the EAT this met the required 'material reason' for the claim of detriment to be upheld.

On the question of automatically unfair dismissal the EAT concluded that it was not clear on the evidence whether the principal reason for Mr Pazur's dismissal was his refusal to return to Site B because he would be required to work contrary to the WTR. This was because LCS had asserted that other issues had contributed to Mr Pazur's dismissal which were unrelated to the WTR. The EAT remitted this question to tribunal in order to make a finding on the unfair dismissal claim.

Wrigleys comment

Perhaps the main learning point for employers is the re-emphasis that this case draws to the importance of rest breaks. By law, workers are entitled to an uninterrupted break of at least 20 minutes if they work more than 6 hours in a day. Ultimately, it was LCS's decision to command Mr Pazur to work in an environment where his right to a rest break had not been upheld previously, and to threaten him with the loss of his job when he refused, that led to all of the time and legal expenses incurred in fighting Mr Pazur's case through the tribunals.

Busy periods and stretched resources will not provide employers with an excuse for failing to comply with the WTR or for subjecting their workers to a detriment if they should refuse to work in contravention of the WTR. Employers can find useful information about the WTR online via government resources and ACAS. If a particularly tricky WTR issue arises, we recommend employers take legal advice to avoid potential claims.

It is also worth noting the problems the manager's message to Mr Pazur caused in this case. Here, a blunt threat followed by a single line of text dismissed Mr Pazur, but it left the precise reasons as to why Mr Pazur had been dismissed wide open to interpretation, which in turn gave Mr Pazur room to bring his claims.