lEAT Working Time Regulation 1998 – detriment – Section 45A Employment Rights Act 1996
Unfair Dismissal – automatically unfair reason for dismissal – Section 101A Employment Rights Act 1996
The Claimant, who worked as a Kitchen Porter, had been denied his right to a rest break (contrary to Regulation 10 WTR and his contractual entitlement) when assigned to work for client L. When he subsequently refused to return to client L, he was first threatened with dismissal and then dismissed by the Respondent. The Claimant brought ET proceedings (relevantly) contending the threat of dismissal had amounted to an unlawful detriment, contrary to Section 45A ERA, and that he was then dismissed for a automatically unfair reason for the purposes of Section 101A ERA. He also complained that he had been wrongfully dismissed. The ET accepted that the Claimant had previously left client L’s premises because he refused to comply with a requirement that was in breach of the WTR. Proceeding on the basis that requiring the Claimant to return to client L amounted to the imposition of, or proposal to impose, a requirement in contravention of the WTR, the ET was not satisfied that the Claimant had provided sufficient evidence to establish his refusal to return to L was a refusal for the purposes of Sections 45A or 101A ERA and accordingly dismissed both of those claims. In considering the Claimant’s complaint of wrongful dismissal, however, the ET found that his reason for refusing to return to client L was due to his concern about the Head Chef (who had tried to make him stay longer on the previous shift) and because of the working arrangements in breach of the WTR. In the circumstances the ET upheld the wrongful dismissal claim, finding the Respondent had no proper basis for summarily dismissing the Claimant.
The Claimant appealed against the ET’s rejection of his detriment and dismissal claims.
Held: allowing the appeal
The ET had not erred in seeking to determine the Claimant’s reason for declining to return to client L; the protection afforded by Sections 45A and 101A ERA required that there was some explicit refusal (or proposal to refuse) to accept a requirement in contravention of the WTR. The dismissal of those claims because the Claimant had failed to establish the reason for his refusal was, however, inconsistent with the ET’s subsequent finding (in relation to the wrongful dismissal claim) that the reason was (at least in part) related to a requirement to work in contravention of the WTR. Moreover, given the ET had found that the Respondent’s conduct and decision to dismiss were materially influenced by the Claimant’s refusal to return to client L, it ought to have upheld the Section 45A detriment complaint. As for the Section 101A claim, the question was whether that refusal was the reason, or principal reason, for the dismissal. That was a question that would need to be remitted of the ET for reconsideration.
Citations:
[2019] UKEAT 0018 – 19 – 2008
Links:
Jurisdiction:
England and Wales
Employment
Updated: 26 August 2022; Ref: scu.642761
