Can a threat to dismiss be an unlawful detriment when an employee refuses to work?
7th October, 2019
In Pazur v Lexington Catering Services Ltd, the Employment Appeal Tribunal found that a kitchen porter who was threatened with dismissal when he refused to return to a client's site because the client had not allowed him a rest break on a previous occasion, contrary to Regulation 12 of the Working Time Regulations 1998 (WTR), had been subjected to an unlawful detriment under s.45A(1)(a) of the Employment Rights Act 1996.
The Claimant, Mr Pazur, worked for Lexington Catering Services Ltd, as a kitchen porter and was assigned to work for various clients at different locations each week.
In November 2017, when working on site for a client, the Claimant was denied a rest break of at least 20 minutes during an 8 hour shift, contrary to reg.12 of the WTR 1998. His line manager and the client’s chef had asked him to stay longer, but he refused. The Claimant complained to the Respondent about the incident, but this was not followed up.
On 4 December 2017, the Claimant was reassigned to the same client but refused to go, citing the client’s earlier refusal to let him have his rest break. The Respondent sent the Claimant a text, threatening to dismiss him if he did not go. The Claimant did not go and was subsequently dismissed.
The Claimant claimed that the threat of dismissal was an unlawful detriment under s.45A(1)(a). He also claimed that his subsequent dismissal was automatically unfair under s.101A, and that it was a wrongful dismissal.
The Employment Tribunal (ET) rejected both the unlawful detriment and automatic unfair dismissal claims.
The ET acknowledged that the refusal of the rest break was the reason why the Claimant had refused the request to stay at work longer during the November assignment, and it was the very thing he had complained about after the shift. However, he had also referred to the chef being unpleasant to him, which the employer submitted was a reason which did not attract the protection of the relevant statutory provisions. The ET was therefore not satisfied that the Claimant had provided sufficient evidence to establish his refusal to return.
Regarding unfair dismissal, the Tribunal held that the dismissal had taken effect when the Claimant sent the text message and accepted that the reason for dismissal was because the Claimant refused to return to the client. However, it considered that there was insufficient evidence about why the Claimant refused and felt unable to conclude that it was because he expected the chef to refuse him his break again. However, the ET upheld the Claimant’s claim of wrongful dismissal, finding that there was no proper basis for his summary dismissal.
The Claimant appealed to the Employment Appeal Tribunal (EAT).
Employment Appeal Tribunal decision
The EAT confirmed that the Claimant would have had to explicitly refuse to comply with the employers requirements to work in breach of the WTR to be successful in his detriment and automatic unfair dismissal claims.
The EAT held that the ET had erred in concluding that there was insufficient evidence of the reasons for the Claimant’s refusal. The ET had found that the threat of dismissal was made because the Claimant refused to return to the client. If the Claimant’s reason for refusing was because it would mean complying with the requirement to forego his rest break under the Regulations, he would be entitled to the protection of s.45A(1)(a) and s.101A, but if it was for some other reason, he would not. The ET had made a clear finding that the Claimant refused to return because he had been denied his break and because there was a breakdown in his relationship with the chef. The two reasons could be seen as one and the same and it was inconsistent for the ET to have concluded that there was insufficient evidence as to the reason for refusal. It was also clear that the Claimant’s refusal had materially influenced the Respondent’s threat and the detriment claim therefore succeeded. Accordingly, in respect of the detriment claim, the ET’s judgment was set aside.
With regards to unfair dismissal, the issue was whether the Claimant’s refusal to return to the Claimant was the reason, or principal reason, for the dismissal, rather than a material influence. The ET had not expressly stated its view. It could find that it was the breakdown of the relationship with the chef which had weighed with the employer at the time of dismissal, or that the dismissal was partly based on an earlier incident when the employee had refused to return to the site of another client. The point was remitted back to the ET to determine whether the Claimant’s refusal, or proposal to refuse, was the reason or principal reason for his dismissal.
This case also illustrates that employers need to be very careful when taking disciplinary action against an employee where they have raised complaints that could amount to whistleblowing.
It is also an important reminder to employees to be aware of the statutory entitlement to rest breaks and ensure that staff are not prevented from exercising these entitlements.
If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.