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Case law: Tribunal clarifies when worker has refused to work because of breach of working time rules

Employers should note a recent ruling clarifying when a worker has ‘refused’ to comply with a requirement that breaches the working time rules - for example, the worker walks off a shift or does not turn up for work – because of the risk the employer may face a claim for detriment and/or unfair dismissal.

November 2019

This update was published in Legal Alert - November 2019

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

A kitchen porter assigned to an agency client walked out before his shift had finished, despite the client wanting him to work longer, on grounds the client had not given him the rest breaks required by law. He complained to his agency about this but it ignored him. When he was later assigned to the same client, he refused to go. His employer threatened him with dismissal, and then went on to dismiss him.

Workers who refuse to comply with a requirement that would breach working time rules are legally protected from:

  • detriment, ie, treatment by their employer (short of dismissal) that is detrimental or demeaning – for example, if the employer handles a grievance or disciplinary issue in a way that indicates they are not taking it seriously, or they are not dealing with it properly; and
  • dismissal, if their refusal to comply is the reason or principal reasons for it.

The worker claimed unlawful detriment and unfair dismissal. To win his claim, he had to show that a requirement had been imposed on him that was in breach of the working time rules, that he had refused to comply, and that his refusal was the reason, or principal reason, for the dismissal.

The Employment Tribunal found that the worker had not refused to comply with the requirement imposed. Instead, he had simply walked out without saying why, so his claim failed.

The Employment Appeal Tribunal agreed that the word ‘refuse’ meant that simply walking out was not enough – there had to be an explicit, express refusal to work because of the failure to comply with the rules. However, it found that while the worker had not expressly refused to comply when he walked out, the worker’s later refusal when asked to go back to work for the same client, was sufficient refusal for the purposes of his claim. This was because his refusal had materially influenced the employer’s decision to threaten him with dismissal.

Operative date

  • Now

Recommendation

  • Employers whose workers walk out or do not turn up for work should find out why, because if it’s a result of asking the worker to comply with requirements that breach the working time rules, it could amount to a refusal to comply by the worker and result in a detriment and/or unfair dismissal claim.

Case ref: Pazur v Lexington Catering Services Limited UKEAT/0008/19/LA

Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.

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