Threat of dismissal for refusing to work without rest break was unlawful detriment


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The Employment Appeal Tribunal (EAT) has held in Pazur v Lexington Catering Services Ltd that an employee who was threatened with dismissal when he refused to return to a client site because the client had not allowed him a rest break was subjected to an unlawful detriment under section 45A of the Employment Rights Act 1996 (the ERA 1996).

The claimant was employed as a kitchen porter by LCS Ltd, which assigned him as part of a support team to various different locations.  He refused to return to sites to which he had been assigned on two separate occasions.  On the first he refused to return to the site of 'Client B' because of poor working conditions, and LCS Ltd called him in for a discussion but did not take any disciplinary action.  The second occurred when he was assigned to 'Client L' to work an eight-hour shift from 2pm to 10.30pm.  The claimant refused to stay beyond 10pm because the shift did not allow him time for a rest break in contravention of Regulation 12 of the Working Time Regulations 1998 (the WTR 1998).

The claimant complained about this to LCS Ltd, but was then reassigned to Client L.  He refused to go on the basis that Client L had refused to offer him a rest break.  He was warned that if he did not go to work at Client L's site he would be dismissed and this is ultimately what happened.

At first instance the tribunal rejected the claimant's claims for unlawful detriment and automatically unfair dismissal, finding that there was insufficient evidence surrounding the reason why the claimant refused to return to Client L.  On appeal the EAT found that it was at least implicit in the tribunal's findings that LCS Ltd had imposed a requirement on the claimant that was in contravention of the WTR.  The tribunal had also made a finding that the claimant refused to return because he had been refused his rest break, and there was a breakdown in his relationship with the head chef at Client L.  As the breakdown in relationship could be seen as referable to the rest break issue, the section 45A claim of detriment succeeded.   The issue of whether the dismissal was automatically unfair was remitted to the tribunal for further consideration.

Take note: The decision in Pazur emphasises that threatening a worker with dismissal following their refusal to work without a rest break under the Working Time Regulations 1998 will entitle them to bring a detriment claim under section 45A ERA.

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