Pazur v Lexington Catering Services Ltd (EAT)
The Employment Appeal Tribunal has held that an employee who was denied his minimum entitlement to rest breaks under the Working Time Regulations 1998 ("WTR"), subsequently refused to work and was then dismissed by his employer for doing so had suffered an unlawful detriment for refusing to forego his WTR rights.
In this case, the Claimant worked as a kitchen porter for a catering company and had been denied his statutory right to a 20 minute rest break whilst working an 8 hour shift for a particular client. When subsequently reassigned to the same client, the Claimant refused to work on the basis that he had not previously been permitted adequate rest breaks in line with his WTR entitlements. He was promptly dismissed and brought claims against his employer on the basis that: (i) the threat of dismissal was an unlawful detriment flowing from his refusal to comply with an order which contravened the WTR, as prohibited by the Employment Rights Act 1996 ("ERA"); and (ii) the dismissal was automatically unfair as a result.
Whilst the Employment Tribunal rejected his claims on the basis that the Claimant's refusal to work (and subsequent dismissal) had been influenced by factors other than the refusal to grant adequate rest breaks, the EAT considered that the two issues were clearly linked and it could fairly be said – based on the Tribunal's findings of fact – that the refusal to work had materially influenced the decision to dismiss. This was sufficient for the unlawful detriment claim to succeed. The automatic unfair dismissal claim was remitted to the Tribunal to assess whether the refusal to work was the "sole or principal reason" for the dismissal.
This case reiterates the importance of dealing sensitively with any employee allegations that statutory rights, including those arising under the WTR, have been infringed. Many claims for automatically unfair dismissal do not require two years' continuous service and the relatively loose causal link required by the EAT between the initial breach and subsequent detriment / dismissal could invite speculative claims from employees who would otherwise have limited protection against dismissal.