Pazur v Lexington Catering Services Ltd - Detriment: working time

The Employment Appeal Tribunal (EAT) has held that a worker who was denied a rest break, and later threatened with dismissal when he refused to return to work as a result, was subjected to an unlawful detriment.

Under the Working Time Regulations 1998 (WTR), adult workers who work more than a six-hour shift are entitled to a rest break of at least 20 minutes. If they are asked to comply with a request that breaches the provisions of the WTR and refuse, such as not taking their break, they are protected from suffering a detriment as a result under section 45(A) of the Employment Rights Act 1996 (ERA). Section 101(A) of the ERA also outlines that it will be automatically unfair to dismiss the individual for this reason, meaning that they will not need length of service in order to bring a claim.

FACTS

In this case, the claimant worked as a kitchen porter for the organisation, which involved him conducting duties for various clients at a number of locations. Whilst working for one client, ‘client L’, the claimant refused to stay longer and finish his shift when asked to by the Head Chef as he claimed that he had not been provided his statutory right to a rest break. Following this, he raised concerns with the organisation regarding the rest break issue, but no further action was taken by them.

Later, the claimant was asked to return to Client L but refused to, outlining that he had recently complained about Client L due to the rest break situation and was concerned that the Head Chef would ‘not be nice with him’. The organisation’s operational manager texted the employee in response, outlining that if he did not go as instructed, he would have ‘no job on support team’. When the claimant reaffirmed his refusal to go back, the manager sent him a further text that stated, ‘your P45 will be sent to you, good luck’.

ET

The claimant brought numerous claims to the ET. He argued that he had been wrongfully dismissed due to the organisation breaching their contract. He also stated that the threat to dismiss him amounted to a detriment contrary to section 45(A) of the ERA and that his dismissal was automatically unfair as per section 101(A).  

The tribunal upheld his wrongful dismissal claim, finding that the organisation had ‘no proper basis’ for summarily dismissing the employee in the circumstances. However, the tribunal was not satisfied that the claimant had provided enough sufficient evidence for them to conclude that his refusal to return to Client L was because he specifically expected the Chef to once again refuse him breaks. This was because, during his evidence, the claimant had cited the Chef’s unpleasant behaviour as well as the rest break issue.

EAT

The claimant appealed against this decision to the Employment Appeal Tribunal (EAT), who allowed his appeal in relation to the section 45 claim, but remitted his additional claim of automatic unfair dismissal to the same tribunal for further review.

The EAT outlined that the tribunal had correctly identified that the main issue in this case was not why the claimant had originally left his shift whilst working for Client L; it was why he was refusing to return to them. Whilst the claimant did not specifically need to identify a contravention of the WTR, he was required to tell the organisation that his reason for the refusal to return to Client L was related to this.

The requirement to work in contravention of the WTR was a material influence on the claimant’s refusal to return to the client. There was no need for it to be the only reason. For this reason, the EAT found that the tribunal should have upheld his section 45A detriment complaint.

However, in order to determine if he had been automatically unfairly dismissed, the EAT made clear that the test was whether the refusal was the reason or principal reason for the dismissal. As they did not feel this point had been fully assessed by the tribunal, they therefore remitted the case back to them.

Note for employers 

This sends a clear reminder to organisations of the dangers, and potential consequences, of attempting to operate in breach of the WTR. Employees will not need to have length of service to bring a claim. That said, they will need to explicitly state that they are refusing to comply with a requirement which will mean they will forgo their statutory entitlement. Without this specific information, they will not be protected.  

« Back to News