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Employment Bulletin – Working time regulations

Under section 45A of the Employment Rights Act 1996, workers have the right not to be treated badly by their employers for refusing to work in breach of the Working Time Regulations 1998 (WTR). If Read more...

Under section 45A of the Employment Rights Act 1996, workers have the right not to be treated badly by their employers for refusing to work in breach of the Working Time Regulations 1998 (WTR). If such a refusal is the reason, or the main reason, for an employee’s dismissal, their dismissal will be automatically considered unfair. The case of Paxur v Lexington Catering Services examines how explicit this refusal needs to be.

The employee was a kitchen porter. He had previously been assigned to a client, Lexington, who did not allow him to take his 20-minute rest break. When asked to return to Lexington for work, the employee refused. He was first threatened with the sack, and then officially sacked for refusing to go. He brought forward a detriment claim and a claim for automatic unfair dismissal.

The employment tribunal asserted that the requirement to return to Lexington was a requirement to work in a way which breached the WTR, due to the refusal to allow a rest break. However, the tribunal also stated that the employee had not provided enough evidence to show that his refusal was related to the WTR issue, as opposed to general dislike of the staff at Lexington. The EAT agreed that an explicit WTR-related refusal was required. However, in this case the tribunal had overlooked evidence that the refusal was related to the WTR issue. The EAT upheld the detriment claim and sent the unfair dismissal claim back to the same tribunal panel to decide whether the dismissal was related to a refusal to work without rest breaks. 

This case highlights the importance of dealing with complaints about breaches of the law carefully. Employers should also ensure that all workers get adequate rest breaks, wherever they work.