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The Working Time Regulations 1998 (WTR) are often treated as a set of administrative rules for HR to track hours and rest breaks. Yet their purpose is far more profound. They are a public health measure, designed to protect workers from fatigue, stress, and the physical effects of excessive work.
A recent employment tribunal decision involving a cleaner working two jobs for the same employer and clocking an extraordinary 77.5 hours per week reminds employers that breaches of the WTR are not merely procedural. They can render a contract unlawful, justify dismissal, and even prevent an employee from enforcing basic contractual rights.
Two jobs, one employer, and a breach of law
The employee in question held two cleaning roles with the same employer, one during the day and one at night, following a TUPE transfer. Combined, her working pattern grossly exceeded the legal limit for night work under Regulation 6(1) of the WTR, which restricts night workers to an average of eight hours in every 24-hour period.
This limit, unlike the 48-hour weekly average, cannot be waived. There is no opt-out. It is a mandatory safeguard reflecting the elevated risks associated with night work, such as disrupted sleep, impaired judgment, and long-term health concerns.
When the employer discovered the breach, it suspended the employee and ultimately dismissed her from the lowest-paid role, having offered to reduce her hours so that she could continue working legally. The employee challenged the decision, bringing claims for unlawful deduction of wages and breach of contract.
The tribunal dismissed her claims in their entirety. Its reasoning provides a masterclass in how tribunals view illegality in employment relationships, not as a technical trap, but as a question of public policy.
Illegality and public policy
The tribunal found that the employee had knowingly concealed the true extent of her working hours. Her two contracts were performed illegally, as she was working in excess of the WTR limits, and the illegality went to the core of the employment relationship. The question was whether this illegality prevented her from enforcing her contractual rights.
To reach that conclusion, the tribunal relied heavily on two Court of Appeal authorities: Okedina v Chikale [2019] EWCA Civ 1393 and Enfield Technical Services Ltd v Payne [2008] EWCA Civ 393.
- Okedina v Chikale
In Okedina, a Malawian domestic worker continued to work for her employer after her visa expired. The employer argued that the contract was illegal and unenforceable. The Court of Appeal disagreed. It held that illegality in performance does not automatically invalidate an employment contract unless the employee knowingly participates in that illegality. The Court stressed that public policy should not be applied mechanically: the test is whether the employee had knowledge of and intent to participate in the unlawful conduct.
This principle protects workers who may unwittingly be caught up in illegality beyond their control (for example, immigration or tax errors engineered by employers).
- Enfield Technical Services Ltd v Payne
In contrast, Enfield dealt with employees who knowingly participated in an illegal tax avoidance scheme. They were aware that their pay arrangements breached statutory obligations, and the Court of Appeal held that they could not enforce their employment contracts. A contract performed illegally, with the employee's knowledge and participation, is unenforceable as a matter of public policy. The courts, as a rule, will not assist a claimant to profit from their own wrongdoing.
The tribunal combined these two lines of authority. The employee's deliberate concealment of her hours demonstrated knowing participation in the unlawful performance of her contract. She had intentionally breached the WTR, not through ignorance, but through choice. Her claims for unpaid wages and breach of contract were therefore barred by the doctrine of illegality.
In the tribunal's view, this was not an administrative misstep but a serious violation of public policy. The Working Time Regulations exist to prevent precisely this kind of excessive working pattern. Allowing the employee to benefit contractually from a breach would undermine their health and safety purpose.
Fairness and dismissal under the Employment Rights Act
The tribunal went further. Even if the illegality bar had not applied, the dismissal would still have been fair under section 98(2)(d) of the Employment Rights Act 1996, which allows an employer to dismiss an employee where continued employment would contravene a statutory restriction.
The employer's process was measured and reasonable. It investigated the breach, offered the employee reduced hours to bring her within the WTR limits, and dismissed her only when no compliant arrangement could be reached. The tribunal found that this approach satisfied the standards of procedural and substantive fairness.
The case illustrates that compliance and fairness can coexist. Employers are not entitled to dismiss automatically upon discovering a breach; they must act proportionately and afford the employee an opportunity to respond. Here, the employer's willingness to preserve employment, and its recognition that the WTR breach was a health and safety issue rather than a disciplinary one, weighed heavily in its favour.
Why this case matters
At its heart, the decision reinforces three key points of principle.
First, the Working Time Regulations are not optional. While employees can opt out of the 48-hour weekly average limit, no such mechanism exists for night work. Employers and employees alike must treat the eight-hour limit as absolute.
Second, a contract performed illegally cannot be enforced where the employee knowingly participates in the illegality. This extends beyond working time to areas such as immigration status, tax evasion, or breaches of safety regulations. The doctrine reflects a long-standing public policy principle: the law will not assist a person to profit from their own unlawful conduct.
Third, fairness in process still matters, even when illegality is clear. Employers should not assume that discovering an unlawful working pattern automatically justifies dismissal. A fair investigation, clear communication, and a reasonable opportunity to rectify the breach remain essential to defending any claim.
Practical lessons for employers
This case underscores the need for vigilance in managing working time, particularly where employees hold multiple roles. Employers should ensure that their systems capture total hours worked across all posts, not just within a single department or site. In larger organisations, this may require joined-up HR data or cross-site communication to identify potential overlaps.
Employers should also remind staff of their duty to disclose secondary employment, especially where shift work or night work is involved. Written policies on dual employment can help clarify these obligations and create a framework for transparency.
Crucially, WTR compliance should be treated as a shared duty. Employers must monitor and manage, but employees must act honestly and cooperatively. Concealment of hours is not simply a disciplinary issue, it may invalidate the employment contract altogether.
Compliance as protection
The tribunal's decision is a timely reminder that the Working Time Regulations are not bureaucratic red tape but a cornerstone of occupational health law. They protect workers from harm and shield employers from liability.
By linking the WTR breach to public policy and applying the doctrine of illegality, the tribunal reinforced that these rules have real teeth. Employers who act transparently, monitor diligently, and apply fair process can navigate such breaches confidently. But where illegality is deliberate, the law will not come to the employee's aid.
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