Gale & Ors v Mid & West Wales Fire Service (Working Time Regulations)

For protection under section 45A(1)(a) of the Employment Rights Act 1996, an Employment Tribunal must first determine whether the employer imposed or proposed a requirement contravening the Working Time Regulations 1998. Under section 45A(1)(b), the worker must have signified a proposed refusal to forgo the relevant statutory right.

The protected matter need only be a material factor in the employer’s decision. The material time is when the detrimental decision was made, rather than when it later took effect. Section 45A(1)(c) requires an actual failure to sign an opt-out agreement following a request; a pre-emptive refusal is insufficient.

Firefighters at Llanelli Fire Station were transferred to other stations after the respondent introduced self-rostered crewing at Llanelli. They alleged that the transfers were detriments imposed because they had refused or proposed to refuse to opt out of the Working Time Regulations 1998, or to forgo rights to rest breaks.

The Cardiff Employment Tribunal dismissed claims under sections 45A and 48(1ZA) of the Employment Rights Act 1996. The claimants appealed, contending that the new arrangements necessarily required unlawful working-time opt-outs, that the Tribunal had applied the wrong causation test, and that its conclusions were inadequately reasoned or perverse.

The central issue was whether the transfers were imposed on a prohibited ground within section 45A(1).

1. Appeals dismissed. The Employment Tribunal was entitled to reject each route by which the claimants put their section 45A claims.

2. Section 45A(1)(a), (b) and (c) address distinct matters. Section 45A(1)(a) concerns refusal to comply with an employer’s requirement which does, or would, contravene the Working Time Regulations 1998. Section 45A(1)(b) concerns refusal to forgo a right conferred by those Regulations, such as a right to rest breaks. Section 45A(1)(c) concerns an actual failure to sign an agreement permitting an opt-out; it does not extend to a statement that a worker would refuse if asked.

3. The Tribunal had found that the respondent had not asked the claimants to sign an opt-out. That finding was a complete answer to the section 45A(1)(c) claims.

4. For section 45A(1)(a), the Tribunal first had to decide whether the proposed self-rostered system would impose a requirement contrary to the Regulations. Its reasons were not ideally clear, but its findings established that day-only working was available and did not require an opt-out. It was therefore open to the Tribunal to conclude that, when it made the transfer decision, the respondent had not imposed or proposed an unlawful requirement.

5. The applicable causation inquiry was why the employer acted, not a criterion-based “but for” inquiry. A protected matter need only materially influence the decision. The Tribunal was entitled to assess the respondent’s state of mind when the transfer decision was made, rather than when the transfers later took effect.

6. The section 45A(1)(b) claim concerning Regulation 10 rest breaks also failed. Until 29 January 2013, nothing had signified that the claimants were refusing to forgo rest-break rights. The transfer decision had already been made and communicated. The later implementation of that decision, including refusal to revisit it after replacements had been recruited, was not a new discrete detriment.

• Employment Appeal Tribunal: Appeals by the claimants dismissed.
• Cardiff Employment Tribunal: On 12–13 June 2014, with judgment sent on 20 June 2014, dismissed the claimants’ complaints under sections 45A and 48(1ZA) of the Employment Rights Act 1996.