The Working Time Regulations (WTR) 1998 set out a number of provisions regarding the rest periods workers are entitled to – but what happens if an employee refuses to work for reasons related to these rules being flouted by the employer?
While it is fairly common for employees to work through their rest breaks without complaint, employers should actively ensure that employees’ statutory rights are upheld and that working arrangements allow them to take the time out they are entitled to.
Moreover, a recent case has highlighted that attempting to dissuade employees from taking rest breaks by threat of punishment or dismissal will give the employee grounds to make a complaint to an Employment Tribunal.
What rest periods are workers entitled to under the WTR?
Employers must give workers at least the rest breaks required by the WTR. This includes the right to:
- One uninterrupted 20-minute break during their working day, if they work for more than six hours;
- 11 hours’ rest between working days (e.g. If a worker finishes work at 10pm, they should not begin work until 9am the following morning); and
- An uninterrupted 24 hours without work each week or 48 hours each fortnight.
To ensure these rights are maintained, the Employment Rights Act (ERA) 1996 also protects workers against:
- Detrimental treatment arising from their refusal to comply with a requirement that would violate their rights under the WTR (ERA section 45A); and
- Dismissal, or the threat of dismissal based on their refusal (ERA section 101A).
Pazur v Lexington Catering Services Ltd
The claimant in this case, Mr Pazur, was employed as a kitchen porter by Lexington Catering Services (LCS), which required him to work at various client sites. On two occasions, Mr Pazur refused to return to work for the client to which he had been assigned, first citing poor working conditions and then, separately, due to the fact that the client had denied him a rest break during an eight-hour shift. This second incident prompted him to walk off site half an hour before his shift was due to end.
In regard to the first instance, Mr Pazur was brought in for a discussion, but no disciplinary action was taken. However, following his second refusal over rest break entitlement, he was reassigned to work for the same client and told that if he did not return to site, his employment would be terminated. This is ultimately what transpired.
Employment Tribunal and Appeal
Mr Pazur subsequently took LCS to an Employment Tribunal, claiming that:
By LCS threatening dismissal, he had been subjected to an unlawful detriment under section 45A of the ERA. This threat, he argued, had been made as a direct result of him proposing to refuse to forgo a right conferred by the WTR.
Because the dismissal was based on his attempt to assert a statutory right, it was automatically unfair under section 101A of the ERA.
Both claims were rejected by the Tribunal in the first instance, as although it accepted that LCS had sought to impose a requirement that contravened the provisions of the WTR, Mr Pazur was unable to satisfy the Tribunal that this was the reason why he had refused to go back to work for this particular client.
Mr Pazur later appealed this decision. Here, the Employment Appeal Tribunal (EAT) pointed out that the first-instance Tribunal correctly considered section 104(3) of the ERA, which states that an employee must make it “reasonably clear” to the employer what the right claimed to have been infringed was. In other words, there needed to be an explicit communication of Mr Pazur’s refusal, and simply not turning up would not satisfy this requirement.
However, considering all the facts of the case, the EAT conceded that:
- The Tribunal had made a finding elsewhere that Mr Pazur had been explicit in his refusal to return to the client.
- Contrary to the Tribunal’s finding, there was in fact sufficient evidence of the reasons for Mr Pazur’s refusal.
- Mr Pazur’s failure to return to site had materially influenced the threat of dismissal.
Accordingly, the EAT allowed the appeal. However, in relation to whether the dismissal had been automatically unfair, it remitted the case back to the same Tribunal to determine whether Mr Pazur’s refusal was the principal reason for his dismissal or just a material factor.
James Tamm
Director of Legal Services
Expert Comment
This is a fairly unusual case. Most employers will be well aware of their duties under the WTR and, consequently, will be wary of putting employees in positions where those obligations cannot be complied with. To then threaten action against, or even dismiss, an employee for raising concerns in that regard is very dangerous. It opens the door to automatically unfair dismissal claims that cannot be defended in the usual way. Employers should tread carefully and remember that they will be liable for dismissal-related claims even if, in cases like these, the WTR non-compliance comes via a third party.
