HR professionals are very aware of the risk of automatically unfair dismissal when the dismissal is of an employee with less than two years service. In Pazur v Lexington Catering Services Ltd not only is the risk of automatically unfair dismissal highlighted, but also the less common scenario of when the threat of dismissal amounts to a detriment - another claim that can be made with no qualifying service requirement.
Mr Pazur, a kitchen porter, was assigned by his employer to work for a client however during that assignment he was denied his rest breaks contrary to Regulation 10 of the Working Time Regulations 1998 ("WTR"). When he subsequently refused to return to work for the same client he was first threatened with dismissal and then dismissed. Under section 45A of the Employment Rights Act 1996 ("ERA"), a worker has a right not to be subjected to any detriment by his employer on the ground that he has refused to comply with a requirement imposed by his employer in contravention of the WTR (in this case a requirement to return to work despite forgoing his right to a rest break) and Mr Pazur brought a claim under this provision. He also claimed wrongful dismissal and automatically unfair dismissal under s101A ERA. The latter states that an employee is unfairly dismissed if the reason or principal reason for dismissal was due to him refusing or proposing to refuse to comply with a requirement of an employer which contravenes the WTR.
The ET accepted that the WTR had been contravened as Mr Pazur had not been allowed to take the break he was entitled to. However, it dismissed the detriment and automatically unfair dismissal claims finding their was insufficient evidence to establish the refusal to return to work for the client was because he expected to have to work without a rest break. He had also complained about the Head Chef being unpleasant to him. However, the ET upheld the wrongful dismissal claim on the basis that the reason for refusing to return was due to Mr Pazur's concern about the Head Chef who had attempted to make him work past the end of his previous shift and because of the working arrangements being in breach of the WTR. Mr Pazur appealed.
The EAT found that the ET had taken the right approach but reached the wrong decision. It was right to seek to identify the reason for Mr Pazur declining to return to work as the protection afforded by sections 45 and 101 ERA required an explicit refusal (or proposal to refuse) to forgo a right under the WTR. However, it was wrong to dismiss the claims as the finding in relation to the wrongful dismissal relied on evidence that Mr Pazur's refusal to return was due to the breach of his right to a rest break. The EAT concluded there was evidence that the refusal had "materially influenced" the employers threat to dismiss and upheld the appeal against the detriment claim.
However, the EAT felt unable to determine Mr Pazur's automatically unfair dismissal claim. That involved the stricter test of whether his refusal had been the "reason or principal reason" for the dismissal (rather than simply a material influence which was all that was required for the detriment claim). The automatic unfair dismissal claim was remitted back to the tribunal for reconsideration.
The Judgement of the EAT included a review of the relevant case law. In reaching its decision the EAT noted that in order to make a successful claim under either s45 or s101 of ERA the worker had to make an explicit communication of their refusal to comply with an employer's requirement to forgo a right under the WTR. However, the worker is not required to state which provision of the WTR is in issue - it is enough that the refusal relates to the imposition, or proposed imposition, of a requirement that would contravene the WTR - in this case the requirement to forgo breaks.
The specific circumstances of this breach was that Mr Pazur was working a 2pm until 10.30pm shift. At 10pm he told the head chef he was leaving because he hadn't been allowed a rest break. The head chef contacted his line manager, to whom Mr Pazur then repeated his reasons for leaving. There may well have been an element of frustration with how Mr Pazur dealt with the situation - walking off the job at a client's premises. However, irrespective of how Mr Pazur had reacted, he was entitled to his break and this case shows how employers need to take care when handling disputes involving the WTR.