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Instruction to Breach Working Time Regulations Can Amount to Unfair Dismissal

on Friday, 17 September 2021.

An instruction to breach the Working Time Regulations can amount to an automatic unfair dismissal, even when an employee does not actually work the shift they were instructed to perform.

In the recent case of Simoes v De Sede UK Lrt, the Employment Appeal Tribunal (EAT) confirmed that an employee can bring a claim for automatic unfair dismissal under s104 Employment Rights Act 1996 (ERA) if they are instructed to infringe their statutory rights, even if the infringement has not actually occurred.

Background

Miss Simoes was employed from 29 June 2018 as a sales assistant by De Sede UK Ltd, a manufacturer and seller of exclusive leather furniture and bags.

On 10 July 2018 Miss Simoes was instructed by her employer to cover her manager's pre-booked holiday. She initially agreed, but once she realised that she would have to work for over 14 consecutive days, in breach of Regulation 11 of Working Time Regulations 1998 (the Regulations), she declared to her employer that this instruction was "treating her like a slave".

Under the Regulations, employees have the right to 24 hours uninterrupted rest in each seven day period.

Ms Simoes' employer refused to provide any temporary cover and despite her complaints, she worked the hours in question as instructed. Two days after her manager returned from holiday, Miss Simoes was given notice of termination and her employment ended on the 17 August 2018.

What Rights Do Employees Have Under S104 of the ERA?

Under section 104, an employee can bring an 'automatic unfair dismissal claim' if the reason for their dismissal was the assertion of a statutory right, in this case the assertion of the Regulations.  

Unlike an ordinary unfair dismissal claim, an employee will not need to have 2 years of continuous employment to bring a s104 claim, and can do so at any time.

The ET Decision

The Employment Tribunal initially concluded that although there were multiple reasons for Ms Simoes' dismissal, the main one was her complaint in relation to her working hours. Regardless, the tribunal dismissed her claim for automatic unfair dismissal on the basis that, at the time of her complaint, the breach of the Regulations had not yet occurred.

It is well established that to bring a complaint of automatic unfair dismissal for asserting a statutory right under s104 of the Act, there must have been an infringement of a statutory right, not merely an anticipation or threat of infringement. The issue in this case, therefore, was whether the instruction to work the particular shift pattern amounted to an infringement, or whether Miss Simoes would have to actually work the shift pattern for the infringement to take place.

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Ms Simoes' Appeal

The EAT concluded that Miss Simoes had been automatically unfairly dismissed, overturning the Tribunal's decision.

As Miss Simoes had been ordered and required to work, for what she understood to be 14 consecutive days without a break, the EAT concluded that this instruction in itself constituted a breach of the Regulations. After she had worked as requested, she was dismissed because she had asserted her statutory rights and therefore had a claim for automatic unfair dismissal under s104.

What Can We Learn From This Case?

This case is a useful reminder to employers of the importance of being aware of, and complying with their employee's statutory rights, and that even a request to breach such rights could give rise to liabilities. 

The case should also serve as a reminder to employers to ensure that employee working patterns are appropriate and are compliant with the Regulations. Before making a request of an employee to work a particular shift pattern, it is sensible to check that employee's working pattern to prevent any potential breach of the Regulations.


If you require further advice on employee working patterns or automatic unfair dismissal generally,  please contact Madeleine Shields in our Employment Law team on 0117 314 5226, or complete the form below.

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