Workers are protected against being subjected to a detriment on the ground that they have refused to comply with a requirement that the employer has imposed or proposed to impose in contravention of the Working Time Regulations 1998 (the Regulations). Employees can also bring an automatic unfair dismissal claim if they are dismissed for the principal reason that they have refused to comply with such a requirement. Pazur v Lexington Catering Services Ltd explores what needs to be in the employee's mind at the time of the refusal for protection to be engaged.
Mr Pazur was employed as a kitchen porter and worked at different sites. On one assignment to site "L" he was not allowed to take a rest break in accordance with his rights under the Regulations and complained about this, along with various other matters. A couple of weeks later he was again assigned to site L. After he refused to work at that site, he was told he could either work there or be dismissed. When he still refused to attend for work he was dismissed. He claimed working time detriment and automatic unfair and wrongful dismissal.
His detriment and unfair dismissal claim failed at the employment tribunal because there wasn't enough evidence about why he was refusing to return to the site. Although he had complained about not getting a rest break, he had not given specific evidence about this to the tribunal and had simply referred to the chef being unpleasant to him. This meant that he could not show that his refusal to return to site L was because he expected that the requirement to forego a rest break would continue to be imposed. However, his wrongful dismissal claim succeeded because he was not in repudiatory breach of contract – his refusal was in the context of a breakdown in relationships.
The EAT upheld his appeal because the tribunal's decisions on detriment and wrongful dismissal were inconsistent. There was clear evidence that Mr Pazur's refusal to return to the relevant site related to working time issues. The tribunal had said as much in its conclusions on the breach of contract claim and this undermined its conclusion on the detriment argument. As the working time issues formed at least part of his reasons for refusing to work, Mr Pazur had done enough for protection against detriment to be engaged and his claim succeeded. However, as the test for the unfair dismissal claim was different, that issue had to be remitted for the tribunal to consider whether his refusal to work at site L was the reason or principal reason for the dismissal. This was not clear, in light of evidence that Mr Pazur had also refused to work at another site where working time issues did not arise.
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