Ajayi v Aitch Care Homes (London) Ltd

For the automatic unfair dismissal protection in section 101A of the Employment Rights Act 1996, an employee’s refusal, or proposed refusal, must involve communication to the employer. Mere non-compliance with an instruction, or conduct which might objectively be consistent with exercising a statutory right, is insufficient.

A contravention of the Working Time Regulations 1998 does not itself engage section 101A. The refusal must be additional to the employer’s contravention. Regulation 12 creates a minimum entitlement to a rest break, but its timing, duration and terms require practical determination in the employment context, including any applicable collective or workforce agreement.

The claimants were waking night support workers who were dismissed after being found asleep during a night shift. They lacked the qualifying service required for ordinary unfair dismissal claims and relied on the automatic unfair dismissal provisions in sections 100, 101A, 103A and 104 of the Employment Rights Act 1996.

The Employment Tribunal found that the dismissals were solely because the claimants had been asleep on duty. It rejected the section 101A claims, finding no refusal or proposed refusal to comply with an unlawful requirement or to forego a right under the Working Time Regulations 1998. The appeal concerned whether sleeping could amount, without prior communication, to an implicit refusal to accept a failure to provide a rest break.

1. Appeal dismissed. The Employment Tribunal correctly concluded that the dismissals were because the claimants had been found asleep on duty, not because they had refused or proposed to refuse anything within section 101A of the Employment Rights Act 1996.
2. On its natural and contextual meaning, refusal involves more than simply failing to do something. Parliament used refusal and proposed refusal rather than failed or did not comply. In the context of working-time rights, refusal therefore requires communication to the employer. It cannot ordinarily be inferred merely from conduct such as sleeping in breach of an instruction.
3. Regulation 12 of the Working Time Regulations 1998 gives an adult worker whose daily working time exceeds six hours an entitlement to a rest break of at least 20 minutes. The provision does not prescribe the precise time at which the break must occur. Its duration and terms are to be determined within the employment context and, where relevant, by collective or workforce agreement.
4. The employer’s failure to make provision for rest breaks was strongly criticised by the Employment Tribunal. However, the existence of that contravention did not itself confer section 101A protection. Section 101A requires an additional refusal or proposed refusal by the employee.
5. The decision in Joao v Jury’s Hotel Management (UK) Ltd, which concerned section 100(1)(c), did not govern section 101A. The reference in section 100(1)(c) to a reasonable belief concerning health and safety had no equivalent in section 101A. The Tribunal’s finding that there had been no refusal or proposed refusal was therefore sufficient to dispose of the appeal.

• Employment Appeal Tribunal: Appeal from the Employment Tribunal at Southampton, whose judgment dated 18 January 2011 dismissed the automatic unfair dismissal claims. The appeal was dismissed.