• Liam Faulkner

Unfair Dismissal and Working Time Regulations - What Employers Need to Know

If an employee wants to pursue a claim for automatic unfair dismissal because they have asserted a statutory right, as Section 104 of the Employment Rights Act 1996 says, the infringement of that statutory right must have actually taken place, rather than being anticipated or threatened in the future. This has been established in case law, specifically Mennell v Newell & Wright (Transport Contractors) Limited [1997] IRLR 519 and Spaceman v ISS Mediclean Limited T/A ISS Facility Service Healthcare [2019] IRLR 512.

However, a recent judgment of the Employment Appeal Tribunal Miss Alda Simoes v De Sede UK Ltd: EA-2019-001209-RN (previously UKEAT/0153/20/RN) has cast this into doubt, albeit only in specific situations.

What happened?

Miss Simoes was working as a sales assistant for De Sede, a company that manufactured and sold leather furniture and bags at a concession in Harrods.

Her manager had a pre-booked holiday coming up and he asked her to work from 28th July to 7th August to cover his absence. At first, she agreed but then realised that this meant she would be working for over 14 consecutive days without a day off, something that the Working Time Regulations did not allow. A week before the cover was due to begin, she raised her concerns about it, saying that it was “treating her like a slave”.

Her manager refused to hire temporary staff to cover his absence and Miss Simoes therefore still had to work the days requested.

On the day before her manager was due to go on leave, a team meeting was held, at which Miss Simoes again said she was not happy about being asked to work fourteen days without a break. Tempers were running high. Visibly upset, Miss Simoes withdrew to a neighbouring concession where she spoke to a Harrods manager about the situation. The manager suggested that she should contact ACAS, whereupon she was told that this was potentially a constructive dismissal situation, given an apparent breach of the Working Time Regulations. Following this, in the words of the original Employment Tribunal, “she did reasonably believe that this amounted to a breach of the Working Time Regulations 1998, specifically regulation 11…Whether or not there was a breach is beside the point. I accept that the Claimant raised the matter in good faith and was reasonably clear that there was a breach.”

No resolution having been achieved, Miss Simoes worked the hours that had been requested of her. After her manager came back from leave, she was given notice of termination and was placed on garden leave until her one week of contractual notice was up.

Miss Simoes claimed that De Sede’s instruction for her to work a particular shift pattern or rota had infringed her rights under Regulation 11 of the Working Time Regulations 1998, and therefore fell under Section 104, as outlined above.

Again, in the words of the tribunal, “although there were multiple reasons for the dismissal, the principal reason…was that she had made a complaint…about her working hours.”

The Employment Tribunal judgment

The tribunal looked at case law on this issue and the wording of Section 104, noting that it was couched in the past tense, and came to the conclusion that “in order to engage the protection of Section 104, it seems that [she] must complain about a breach of statutory rights which has already taken place i.e. it must be a historic breach”

Since the allegation about a breach was made the day before the manager’s leave started, it was being made on “a forward-looking basis i.e. the employee in this case was saying there is going to be a breach.” The tribunal therefore accepted De Sede’s case that no breach had taken place as of the date of the complaint and rejected her claim. She then took her claim to the Employment Appeal Tribunal.

What does the law say?

Section 104 of the Employment Rights Act 1996 says:

(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee—

(a) brought proceedings against the employer to enforce a right of his which is a relevant statutory right, or

(b) alleged that the employer had infringed a right of his which is a relevant statutory right.

(2) It is immaterial for the purposes of subsection (1)—

(a) whether or not the employee has the right, or

(b) whether or not the right has been infringed;

but, for that subsection to apply, the claim to the right and that it has been infringed must be made in good faith.

(3) It is sufficient for subsection (1) to apply that the employee, without specifying the right, made it reasonably clear to the employer what the right claimed to have been infringed was.

Section 104 then goes on to list the relevant statutory rights, which are:

(a) any right conferred by this Act for which the remedy for its infringement is by way of a complaint or reference to an employment tribunal,

(b) the right conferred by section 86 of this Act, . . .

(c) the rights conferred by sections 68, 86, 146, 168, 169 and 170 of the Trade Union and Labour Relations (Consolidation) Act 1992 (deductions from pay, union activities and time off) and

(d)the rights conferred by the Working Time Regulations 1998.

It is therefore clear from this section that a statutory right must have been asserted in line with the wording of Section 104. Causation is established if the assertion of the statutory right is the reason (or if more than one the principal reason) for the dismissal.

The EAT judgment

The EAT said that the employment tribunal had presented, in its judgment, “an entirely correct and succinct summary of the law”. However, what the EAT set itself to examine was whether the law had been correctly applied to the facts presented to the tribunal.

It was clear from those facts that definitely by the day before her manager was due to begin his leave, Miss Simoes had been instructed to cover his holiday period and she was therefore required, to work a 14-day period with no break when the instruction was given to her. This went some way to explaining why she was so upset about the request and why ACAS advised her as it did. When she raised her concerns at the meeting in question, she was “reasonably clear that there was a breach [of her Working Time rights]”.

The EAT said that the matter had “crystalised” when Miss Simoes was instructed to work that particular rota by her manager the day before he left on leave (and possibly a week earlier when the matter was first raised). At that point, she had alleged that the rota would infringe her rights under both the Working Time Regulations and Section 104. Those objections were ignored and her manager went on leave. She was left to cover his absence as she had been instructed to do. After she had done as requested and her manager returned, she was dismissed because, as mentioned above, she had asserted a statutory right.

The EAT examined the case law that had been a part of the original tribunal hearing but said that Miss Simoes’ claim was different; “in this case [she] had been instructed to work the disputed period and she had alleged that the instruction constituted a breach of her statutory rights. It was not a case of “If you ask me to do that then it will be a breach of my rights” as the instruction had already been given…It is the instruction which was alleged to breach the Claimant’s working time rights. She did not have to wait until she had completed the rota that she had asserted in good faith infringed her rights.”

As far as the EAT was concerned, the appeal succeeded.

What employers need to know

Prior to this judgment, employers might have been working under the assumption, derived from case law, that any breach of the Working Time Regulations would have to have already happened in order for it to be the basis of a claim for automatic unfair dismissal under Section 104 of the Employment Rights Act. However, the EAT’s decision shows that this is not always the case. Employers will need to tread carefully when deciding whether to take disciplinary action for cases where the principal reason for a mooted dismissal relates to working hours.

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