An instruction to breach Working Time Regulations can amount to an Automatic Unfair Dismissal

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13 October, 2021

What can happen if you ask an employee to work extra hours where it would breach the Working Time Regulations 1998 (WTR)? Would an employee need to work the shift proposed in order to claim automatic unfair dismissal?

These issues were discussed in the recent case of Simoes v De Sede UK Ltd.

In this case, the Claimant was requested to cover her manager's shift due to a pre-booked holiday. Initially, the Claimant agreed but later changed her mind because she realised there would be a breach under the WTR (specifically Regulation 11) on the basis that she was being instructed to work for over fourteen consecutive days without a break.

The Claimant raised her concern in good faith.

The Respondent, however, could not find a satisfactory solution (including engaging temporary staff to provide the relevant cover) which meant that, in their view, the responsibility remained on the Claimant to provide cover - which she did - and her concerns being overridden as a result.

The Claimant was later dismissed because of the complaint she had raised.

Employment Tribunal (ET)

At first instance, the case was first heard by an ET and the ET dismissed the Claimant's claim for automatic unfair dismissal and decided that at the time the Claimant made her complaint, this was on a forward-looking basis i.e. there is going to be a breach. The Claimant had not actually worked her shift at that point.

The ET said that a mere anticipation or future threat of a statutory infringement was not enough - an infringement must take place for the claim to succeed. The Claimant appealed.

Employment Appeal Tribunal (EAT)

On appeal, however, the EAT allowed the Claimant's appeal and took the position that the statutory infringement took place when the Claimant was instructed by the Respondent to work over the disputed period and therefore she qualified for the protection in relation to automatic unfair dismissal.

The EAT highlighted that, based on the circumstances, it was not a case of the Claimant stating that "If you ask me to do that then it will be a breach of my rights" but instead the instruction itself constituted a breach of her statutory rights. The Respondent had already provided the instructions to provide cover and thereafter repeated this after concerns were raised by the Claimant.

Points to note - what do you need to know

Under Regulation 11 of the WTR, an adult worker is entitled to uninterrupted rest of one full day (24 hours) in a 7-day period or two full days of uninterrupted rest (48 hours) over a 14-day period.

It is well established that to succeed in a complaint of automatically unfair dismissal for asserting a statutory right (under s.104 Employment Rights Act 1996 (ERA)), there must be an infringement of a statutory right. In this case, the Claimant had made a valid assertion that the Respondent's instruction to work a particular shift pattern had infringed her rights under the WTR. It was not necessary for the shift pattern to have been completed for the alleged infringement to have occurred but instead, it was the instruction that was alleged to have infringed her rights. The Claimant's assertion, therefore, came within the scope of s.104 ERA 1996.

This case is a reminder of the importance of you, as the employer, to be monitoring and keeping records of the shift patterns/hours of work of staff in order to ensure they do not fall foul of the WTR, particularly in view of businesses who may now be providing (or seeking to provide) additional shifts to its workforce to ensure business continuity in a bid to address the economic strain caused by the Covid-19 pandemic.

For more information or any related queries on WTR, contact Mohammed Ismail in our Employment & HR department via email or phone on 0333 207 1130. Alternatively, send any question through to Forbes Solicitors via our online Contact Form.

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