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Threatening dismissal for refusing to work without a break

View profile for Leanne Day
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In the recent case of Pazur v Lexington Catering Services Ltd, the Employment Appeal Tribunal held that Mr Pazur had been subjected to an unlawful detriment when his employer threatened to dismiss him for complying with Regulation 10 of the Working Time Regulations 1998 ('the WTR').

Mr Pazur worked across various locations as a kitchen porter.  He had been requested to work at a site but refused due to the working conditions.  He received a disciplinary but no action was taken.  Mr Pazur was then asked to work at a different site from 2pm until 10:30pm but was denied his right to a rest break.  On this basis, he refused to work at that site and brought the matter to his HR manager's attention, but again no action was taken.  When Mr Pazur then received a further request to work at the site, he again refused on the basis that they had previously declined him a rest break and he had been treated badly by the Head Chef. Mr Pazur's manager sent him a text message threatening to dismiss him if he did not work at the site, and he was subsequently dismissed. 

Under s.45A of the Employment Rights Act 1996, a worker has the right not to be subjected to any detriment from his employer on the basis that he refused, or proposed to refuse, to comply with a requirement imposed by the employer which contravened the WTR, and Mr Pazur brought a claim under this provision.  As he was dismissed almost immediately following his refusal to work at the site, he also claimed this was an automatically unfair dismissal in accordance with s.101A Employment Rights Act 1996, which states that an employee will be unfairly dismissed if the reason or principal reason was due to him refusing, or proposing to refuse, to comply with a requirement of their employer which contravened the WTR.

The Employment Tribunal ('ET') rejected Mr Pazur's claims, stating that it was unclear why he had refused to work at the site and there was insufficient evidence as to whether he was communicating his refusal to comply with a requirement by his employer.  Mr Pazur had also stated that the Head Chef at the site had been unpleasant to him, and therefore it could be argued that the reason for not attending the site was because of this issue, rather than because he was denied his rest breaks.  The ET did however agree that he had been wrongfully dismissed and believed there was no reason for summary dismissal. 

The Employment Appeal Tribunal ('EAT') however disagreed with the ET regarding the s.45A claim and set aside their decision, finding that Mr Pazur had indeed suffered an unlawful detriment.  However, the EAT remitted Mr Pazur's claim to the ET to determine whether his refusal, or proposal to refuse to attend the site was the reason or principal reason for the dismissal.  The ET had found that the employer was not concerned with the arguments with the Head Chef and the dismissal had related to Mr Pazur's refusal to work at the site.  However, the ET had not expressly stated that this was the reason and therefore the EAT remitted this part of the claim to the Judge who had previously heard the case.

This case highlights the need for employers to be vigilant when disputes arise involving alleged breaches of the WTR.  Although employees usually require a minimum of two years' service to bring a claim for unfair dismissal there are exceptions to this, one of which involves suffering a detriment for exercising their rights under the WTR.