Working Time Regulations – VICTIMISATION DISCRIMINATION – Detriment
Employment Rights Act 1996 section 45A(1)(a), (b) and (c): right not to be subjected to detriment on the grounds that a worker has (a) refused (or proposed to refuse) to comply with a requirement which the employer imposed (or proposed to impose) in contravention of the Working Time Regulations 1998, (b) refused (or proposed to refuse) to forgo a right conferred on him by those Regulations, (c) failed to sign a workforce agreement for the purposes of those Regulations, or to enter into, or agree to vary or extend, any other agreement with his employer which is provided for in those Regulations.
The Claimant fire fighters contended that they had been subjected to detriment (by reason of their transfers to other stations) on grounds that they had proposed to refuse to comply with a requirement that the Respondent proposed to impose in contravention of the Working Time Regulations (section 45A(1)(a)), and/or proposed to refuse to forgo a right under those Regulations (section 45A(1)(b)), and/or had failed to sign a workforce agreement or otherwise enter into an agreement to opt-out of the Regulations (section 45A(1)(c)).
The Employment Tribunal had clearly found that there had been no requirement that the Claimants sign a workforce agreement/other opt-out and could be no challenge to the dismissal of the claims under section 45A(1)(c).
To determine the claims under sections 45A(1)(a) and (b) the Employment Tribunal first needed to make a finding whether there had in fact been (or would be) a contravention of the Working Time Regulations or that the Claimants were refusing to forgo a right under those Regulations. The Employment Tribunal’s reasoning was less than clear in terms of the distinctions between the different statutory provisions. That was, however, in part because the Claimants’ cases were unclear in this respect. Ultimately the Employment Tribunal had found that what the Respondent proposed did not give rise to a contravention of the Working Time Regulations and that conclusion was not susceptible to challenge on appeal. Moreover, the Employment Tribunal had found that the Claimants had not proposed to forgo a right (to rest breaks) under the Regulations before the Respondent had decided to impose the detriments complained of. That being so, it was not a matter that could have materially influenced the decision.
Appeals dismissed.
Eady QC HHJ
[2015] UKEAT 0365 – 14 – 1004
Bailii
Employment Rights Act 1996 45A(1)(a)
England and Wales
Employment
Updated: 29 December 2021; Ref: scu.545175
