Cleaner working double shifts loses unfair dismissal claim over Working Time Regulations breach
A tribunal found that an employer acted lawfully in dismissing a cleaner who had been working two full-time jobs with only short breaks between shifts.
Background
In Ogumodede v Churchill Contract Services, the claimant worked two full-time cleaning roles: one during the day at Deutsche Bank and another at night at the Houses of Parliament. When the cleaning contracts for both sites came under the same employer following TUPE transfers, it emerged that she was working around 80 hours a week, with only brief rest periods between shifts.
The employer suspended her from her night-shift role without pay while investigating the issue, explaining that her combined hours breached the legal limits on night work and rest breaks under the Working Time Regulations. After a series of meetings exploring possible alternatives, including a part-time role that would have complied with the law, the claimant declined the reduced-hours option. The employer therefore decided to terminate her night-shift contract, allowing her to continue in her higher-paid daytime role.
The claimant brought claims for unfair dismissal, unpaid wages (arising from her suspension on nil pay), wrongful dismissal in relation to her notice pay and redundancy pay. She contended that she should have been made redundant as some of her colleagues working for the Houses of Parliament received redundancy payments.
Decision
The tribunal dismissed all claims. It found that the claimant was barred by the principle of common law illegality from enforcing her night-shift contract: by knowingly concealing her second job, she had been working in breach of the Working Time Regulations, which limit night work to an average of eight hours in any 24-hour period. The tribunal accepted that the employer acted lawfully in suspending her without pay, as continuing to pay her would have condoned an unlawful working arrangement.
The tribunal also held that the dismissal was for a potentially fair reason, that the claimant could not continue to work in both roles without breaching statutory working time restrictions, and that the employer had acted reasonably, having investigated, consulted, and offered a compliant part-time alternative before deciding to end the night-shift role. Her redundancy claim failed because the workforce reduction at the Houses of Parliament site had been achieved entirely through volunteers, and her dismissal was unrelated to any diminution in work.
Learning points for employers
Employers have a duty to ensure staff do not work hours that could breach working time rules or pose health and safety risks. This can be particularly important following a TUPE transfer, where employees may already hold second jobs. Taking steps to identify and address excessive working hours is essential. Dismissal may be fair if the employer acts reasonably, considers alternatives and clearly explains the health and safety implications. It is also good practice to remind staff to disclose any additional employment so that working time and rest requirements can be properly managed.