Threat To Dismiss Employee For Refusing To Work For Client After Working Time Regulations Breach Was A Detrimental Act

Author:Mr Michael Crowther
Profession:Wrigleys Solicitors

EAT: threat was materially influenced by employee's refusal to work at site after rest break refused.

Under the Employment Rights Act 1996 ('ERA') workers are protected from detriment if they refuse to comply with a requirement that is imposed, or proposed to be imposed, by their employer which contravenes the Working Time Regulations 1998 ('WTR'). In order to benefit from the protection, the worker must clearly communicate that his or her refusal is materially based on the fact that the requirement contravenes the WTR.

If an employee is dismissed for the principal reason that the employee refused to comply with a requirement which contravenes the WTR, that dismissal will be automatically unfair under the ERA.

A recent case has considered these issues where an employer threatened to dismiss an employee after he complained about not being afforded rest breaks in accordance with the WTR and was subsequently dismissed.

Case details: Pazur v Lexington Catering Services Limited

Mr Pazur worked as a kitchen porter for LCS, who sent him to various sites. Mr Pazur complained about working on a site ('Site A') due to non WTR-related conditions in which he was asked to work. Separately, Mr Pazur was asked to work a shift on another client site, but left work 30 minutes early because he was refused a rest break by the chef ('Site B'). Mr Pazur complained to LCS about the chef's general treatment of him and specifically complained of the lack of a rest break.

A few weeks later Mr Pazur was asked to return to Site B by LCS. Mr Pazur explained that he did not want to work on Site B again and referred to his complaint about the chef and that he had been refused rest breaks. A manager of LCS then contacted Mr Pazur and said that he could either go to Site B as requested or he would no longer have a job. Mr Pazur explained he would rather have no job than go back to Site B, to which the manager responded: 'Your P45 will be sent to you good luck.'

LCS belatedly organised a disciplinary procedure, which Mr Pazur did not attend, and summarily dismissed Mr Pazur for gross misconduct. Mr Pazur brought a tribunal claim for wrongful dismissal, detriment and automatic unfair dismissal under s.101A ERA (because he did not have enough service for an unfair dismissal claim under s.94 ERA). Specifically, Mr Pazur said that the message he received threatening him with losing his job was a detriment and that his subsequent dismissal was linked to his refusal to comply...

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