A Refusal must be Explicit

One would have thought that an employer dismissing employees for being asleep on the job would be a fairly safe thing to do. As it turns out, the employer in the case of Ajayi and another v Aitch Care Homes (London) Ltd UKEAT/0464/11 got away with it, but had to fight the employees’ claims all the way to the EAT.

As the employees concerned had less than a year’s service, their lawyer had to come up with a plan to enable them to bring their claims as, ordinarily, with employees with less than the requisite level of service, an employer can dismiss with impunity. The exception to this is if the dismissal is for one of a number of automatically unfair reasons.

In this case, the employees argued that they had been dismissed because they refused to forgo a right conferred on them by the Working Time Regulations 1998 (“WTR”). They argued that the employer had not allowed them the right to a statutory rest break as conferred under the WTR and that as such, their taking a nap whilst at work was indication of their refusal to forgo that right.

The EAT disagreed and upheld the tribunal’s decision. It expressed the view that a “refusal” must be more than simply “non-compliance”. It must be explicit and not something which the employer might be able to infer from the employee’s conduct.
The EAT gave the following reasons for its decision:

1.  Parliament specifically used the terms “refused” or “proposed to refuse”.  Had it intended non-compliance to be sufficient, it would have used words such as “failed” or “did not comply”.

2.  Without the requirement for an explicit refusal, it would not always be clear to an employer that the employee is refusing to comply.  For example, in this case, the employer might never have actually discovered the employees asleep.

3.  Regulation 12 of the WTR 1998 provides for minimum rather than precise rights. It does not, for example, provide that a worker is entitled to a break after working six hours. A worker with an eight-hour day will be entitled to a rest break, but whether that break comes after three, four or six hours is a matter for discussion between employer and employee. The regulation sets out a structure within which rest break rights will be negotiated and agreed in the workplace. There is a need for communication, and the word “refusal” in section 101A reflects this.

Had the employees had sufficient service to bring ordinary unfair dismissal claims, the tribunal may well have found in their favour on the basis that the employer was in flagrant breach of the provisions of the WTR in refusing them rest breaks.


About Belinda Lester
I am the managing director and founder of Lionshead Law, a boutique virtual law firm specialising in employment, immigration, commercial and IP law.

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