An employee’s failure to exhaust the employer’s grievance procedure was not relevant...
Rest breaks: threat to dismiss was unlawful detriment
Pazur v Lexington Catering Services Ltd
A worker, who had been denied a rest break and who was subsequently threatened with dismissal following his refusal to return to work, suffered an unlawful detriment.
Workers are protected against detriment if the reason for their treatment is that they’ve refused to comply with a requirement that would breach the Working Time Regulations 1998 (WTR) – s. 45A of the Employment Rights Act 1996 (ERA 1996). Employees are also protected from dismissal if the refusal to comply with a requirement that would breach the WTR was the reason or principal reasons for dismissal – ERA, 1996, s. 101A.
Background
Mr Pazur worked as a kitchen porter for Lexington Catering Services (LCS). Each week, he was assigned to work for various clients at different locations. During an 8-hour shift with a particular client he was denied his statutory right to a rest break of at least 20 minutes. Mr Pazur walked out of his shift early despite the client wanting him to work longer. He subsequently complained to LCS, but his complaints weren’t followed up. When Mr Pazur was later assigned to work for the same client he refused to return. This led to LCS first threatening Mr Pazur with dismissal and subsequently dismissing him saying ‘your P45 will be sent to you, good luck’.
Mr Pazur claimed that the threat of dismissal was an unlawful detriment under s. 45A, in that the threat was made because he had ‘refused, or proposed to refuse, to comply with a requirement which [LCS] had imposed, or proposed to impose, in contravention of the WTR’. He also claimed that his dismissal was automatically unfair under ERA 1996, s.101A for the same reason. A tribunal rejected both his claims. It accepted that requiring Mr Pazur to return to the client amounted to the imposition of, or proposal to impose, a requirement in contravention of the WTR, but it wasn’t satisfied that Mr Pazur had provided sufficient evidence to establish that his refusal to return to the client was a refusal for the purposes of either s. 45A or s 101A. Mr Pazur appealed.
EAT decision
The appeal was allowed.
The tribunal had correctly considered whether Mr Pazur had explicitly refused to accept the requirement to work without a rest break. If simple non-compliance (such as not turning up) was enough, Parliament would not have used the word ‘refuse’ in the legislation. Consequently, there needed to be an explicit communication of Mr Pazur’s refusal. Whilst it was unnecessary for a claimant specifically to identify the alleged contravention of the WTR, he or she was required to tell the employer that they were refusing, or proposing to refuse, for a reason which amounted to a breach of the WTR (here a failure to give a rest break). Despite this, on the facts of the case, the EAT allowed the appeal because it concluded that the tribunal had made a finding elsewhere that Mr Pazur had in fact explicitly refused to return to the client because he had been refused his break – and this materially influenced the threat of dismissal.
As for the automatic unfairness claim, the question was different – was Mr Pazur’s refusal the reason or principal reason for his dismissal, rather than whether it was just a ‘material influence’? This issue was remitted to the tribunal.
Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2019/0018_19_2008.html
Comment
It is important to consider alleged breaches of statutory rights under the WTR seriously and in a sensible and considered manner. Claimants can bring claims for automatically unfair dismissal without two years of service and for detriments suffered as a result of explicit refusals to comply with requirements which would breach rights under the WTR.