All In The Mind – Employee Refused To Work Because He Had Been Denied A Rest Break

Author:Mr Stefan Martin and Ed Bowyer
Profession:Hogan Lovells

Workers are protected against being subjected to a detriment on the ground that they have refused to comply with a requirement that the employer has imposed or proposed to impose in contravention of the Working Time Regulations 1998 (the Regulations). Employees can also bring an automatic unfair dismissal claim if they are dismissed for the principal reason that they have refused to comply with such a requirement. Pazur v Lexington Catering Services Ltd explores what needs to be in the employee's mind at the time of the refusal for protection to be engaged.

Mr Pazur was employed as a kitchen porter and worked at different sites. On one assignment to site "L" he was not allowed to take a rest break in accordance with his rights under the Regulations and complained about this, along with various other matters. A couple of weeks later he was again assigned to site L. After he refused to work at that site, he was told he could either work there or be dismissed. When he still refused to attend for work he was dismissed. He claimed working time detriment and automatic unfair and wrongful dismissal.

His detriment and unfair dismissal claim failed at the employment tribunal because there wasn't enough evidence about why he was refusing to return to the site. Although he had complained about not getting a rest break, he had not given specific evidence about this to the tribunal and had simply referred to the chef being unpleasant to him. This meant that he could not show that his refusal to return to site L was because he expected that...

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