Mr Pazur was dismissed after refusing to work for a client who wouldn’t let him take his statutory rest breaks on an 8 hour shift.
What does an employee need to show to succeed with such claims?
Pazur v Lexington Catering Services Limited
Mr Pazur worked for Lexington Catering Services as a Kitchen Porter. He was sent to different locations each week as required. He refused to return to work for a particular client after he was denied his statutory right to a rest break during an 8 hour shift. Mr Pazur was then threatened with dismissal and subsequently dismissed
Mr Pazur claimed that the threat of dismissal was an unlawful detriment under s45A Employment Rights Act 1996 and that he was automatically unfairly dismissed under s101A ERA 1996.
For such claims to succeed, a tribunal must be satisfied that:
- The employer imposed or proposed to impose a requirement on the Claimant that contravened the Working Time Regulations;
- The worker refused to comply with a requirement which the employer imposed (or proposed to impose) in contravention of the Working Time Regulations 1998; and
- That refusal was the reason for the detriment and/or dismissal.
The Employment Tribunal had previously decided that the employee had not provided sufficient evidence of his reasons for refusing to return to work for the client. In other words, he hadn’t gone back to work for them but hadn’t said it was because of the lack of rest breaks. Mr Pazur appealed against the decision.
The EAT noted that if simple non-compliance (such as not turning up) was enough, Parliament would not have used the word “refuse” in the legislation. This means that there needs to be some form of explicit refusal on the part of the employee.
Notwithstanding the above, the appeal was upheld because there was sufficient evidence that Mr Pazur had explicitly refused to return to work for the client because he wasn’t allowed a break.
Claims relating to rest breaks are few and far between, especially at appeal level. Employers should be mindful that whilst direct remedies for an employee are limited if they are denied rest breaks, claims for detriment or dismissal following a refusal by an employee to comply with a breach of the Working Time Regulations 1998 can result in substantial awards. If proven, any dismissal in these circumstances is automatically unfair, leaving the employer unable to rely upon the reasonableness of the dismissal as a defence.
If you have any queries in relation to the Working Time Regulations or any other HR queries please contact our employment team on 01228 552600 or 01524 548494.