In the case of Pazur v Lexington Catering Services Limited, the Employment Appeal Tribunal has found that an employee, who was threatened with dismissal following his refusal to work for a client who had previously denied him a rest break, had been subjected to an unlawful detriment.
Facts
The Claimant, Mr Pazur, was employed as a kitchen porter by Lexington Catering Services Limited (“LCS”), and was assigned to work for clients at a variety of locations each week.
On one occasion Mr Pazur had been assigned to work for a client for an 8 hour shift, during which time he was entitled to a contractual 30 minute rest break. During this shift Mr Pazur complained to his line manager that he had been prevented from taking his break. He also went on to raise his concerns with LCS’s HR Manager, however, no action was taken.
Mr Pazur was subsequently instructed to return to the same client to undertake a shift. However, he refused to do so, citing concerns that he would not be able to take a rest break and that he would be subjected to pressure to work longer hours. Mr Pazur was informed that if he did not go, he would no longer have a job with LCS. Mr Pazur responded that he would rather have no job. His manager told him that his P45 would be sent to him and wished him luck.
Mr Pazur brought a Tribunal claim stating that the threat of dismissal was an unlawful detriment due to it being made because he had ‘refused, or proposed to refuse, to comply with a requirement which LCS imposed, or proposed to impose in contravention of the Working Time Regulations 1998’ (which states that employees are entitled to a 20 minute rest break for every 6 hours worked). He also claimed wrongful dismissal and automatic unfair dismissal for the same reason.
Decision
The Employment Appeal Tribunal considered that Mr Pazur had explicitly refused to return to work for the client due to his concerns that he would not be able to take a rest break. This was held to have been a communication of a refusal to comply with a requirement in contravention of the Working Time Regulations 1998. This refusal had materially influenced LCS’s threat of dismissal and therefore, Mr Pazur’s unlawful detriment claim succeeded.
The matter of automatic unfair dismissal and wrongful dismissal was remitted to the Tribunal.
Comment
Employees have protection from suffering detriment in their employment in relation to a limited number of specific matters including, as in this case, in relation to certain aspects of working time. In addition, it is automatically unfair to dismiss an employee for those aspects of working time. Employees do not have to have completed a qualifying period to bring this sort of automatic unfair dismissal claim. These rights are similar to the equivalent rights in whistleblowing cases.
This case highlights the need for employers to take care when disputes arise involving alleged breaches of the Working Time Regulations. Employers should exercise caution before dismissing or taking any action that an employee could reasonably consider to be a detriment when such action is related to any allegations involving the Working Time Regulations.
Rachel Collins