The claimants in this case were employed as waking night support workers within a residential home that had a number of vulnerable residents. The Employment Tribunal accepted that the claimants’ jobs, by definition, meant that they were required to be alert at all times. After having been forewarned by a general memorandum that any employees found asleep were likely to be subject to dismissal, the claimants were discovered sleeping on the job. Following a disciplinary process they were dismissed.
The claimants claimed that they had been automatically unfairly dismissed on the grounds that their dismissal resulted from the employer’s refusal (or proposed refusal) to comply with the requirement to provide rest breaks under the Working Time Regulations 1998 (WTR). Whilst the Tribunal was critical of the employer for not providing rest breaks, it was equally critical of the claimants for not asserting their rights previously in order to initiate a dialogue with their employer about taking rest breaks. The Tribunal dismissed the claimants’ claim for unfair dismissal.
On appeal, the EAT agreed with the Tribunal’s approach and said that generally in employment legislation, cooperation, discussion and consultation between the employer and employee is key. Ultimately, the EAT held that the refusal or proposed refusal of a worker to accept his or her employer’s contravention (or proposed contravention) of the WTR must be communicated in advance and cannot be implied. The EAT rejected the claimants’ argument that a worker’s refusal can be conveyed implicitly by ignoring the employer’s instruction not to have breaks.
The EAT clearly rejected the argument that an employee’s refusal to accede to an employer’s contravention of the WTR can be silent and said that refusal must be explicitly communicated to the employer. This case will be of interest to any employer with night workers, and in particular those who employ night workers who are required to stay alert, such as security personnel. Employers should be particularly mindful that employees working night shifts are entitled to rest breaks and should discuss with them suitable arrangements for them to exercise their rights.
