Under the Employment Rights Act, workers have the right not to be subject to a detriment or dismissal if they refuse to comply with a requirement imposed on them by their employer in contravention of the Working Time Regulations (WTR). In Pazur v Lexington Catering Services Ltd, the Employment Appeal Tribunal (EAT) held that workers must communicate that refusal to their employer in order to be protected by the legislation.
Basic facts
Mr Pazur, a kitchen porter, was assigned to work at the site of Client B. He subsequently refused to return because of the working conditions. He was then assigned to work a shift from 2pm to 10.30pm for Client L. As the chef would not allow him to take his 20-minute rest break contrary to regulation 12 of the WTR, he refused to stay beyond 10pm.
A few weeks later, he was asked to return to work for Client L. When he refused because he had complained about Client L not giving him breaks and asking him to work longer, he was threatened with dismissal. When he repeated his refusal when asked again to return to Client L, he was told that “Your P45 will be sent to you, good luck”.
Mr Pazur then claimed that the threat of dismissal amounted to a detriment contrary to section 45A of the Employment Rights Act (ERA), his dismissal was automatically unfair under section 101A of the ERA and that he had been wrongfully dismissed.
Relevant law
Section 45A of the ERA states that workers can refuse to comply with a requirement “which the employer imposed (or proposed to impose) in contravention of the Working Time Regulations 1998”.
Section 101A states that an employee must be deemed to have been unfairly dismissed if the reason (or at least the principal reason) was because they refused to comply with a requirement “which the employer imposed (or proposed to impose) in contravention of the Working Time Regulations 1998”.
Tribunal decision
The tribunal noted that when Mr Pazur had refused to return to work for Client B, he was called in for a discussion but was not disciplined. In contrast, when he refused to return to Client L he was dismissed.
It found that Mr Pazur had left Client L’s premises early because he refused to forgo his right to a rest break. However, with regards to his refusal to return to Client L the tribunal found that Mr Pazur did so because he would be required to work without taking a rest break and because of a breakdown in the relationship with Client L. For instance, in his oral evidence, he also indicated that he was concerned that the chef might be unpleasant to him again.
It, therefore, concluded that, as he had not provided sufficient evidence to establish that his refusal to return to Client L was a refusal related to a contravention of the Working Time Regulations, his detriment and dismissal claim had to be rejected.
EAT decision
The EAT held that the real issue in the case was whether Mr Pazur had communicated a refusal or proposal to refuse to comply with the requirement to forego his break.
It held that, given the tribunal’s finding that Mr Pazur had refused to return to Client L because he had been refused his break and there was a breakdown in the relationship, he had communicated that he was not prepared to work in contravention of the Working Time Regulations.
The issue relating to Mr Pazur’s claim under section 101A was different in that the reason for the dismissal had to be more than a material influence. Given that the tribunal had also found that the dismissal was because of the refusal to go back to Client B as well as Client L, it remitted the case back to the same tribunal to determine whether Mr Pazur’s refusal to return to Client L because of a contravention of the Working Time Regulations was the reason, or principal reason, for the dismissal.