Pazur v Lexington Catering Services Ltd

For protection under sections 45A and 101A of the Employment Rights Act 1996, a worker must communicate an explicit refusal, or proposal to refuse, to comply with a requirement that would contravene the Working Time Regulations 1998. The worker need not identify the particular regulatory provision or positively assert the statutory right.

A tribunal must read its findings as a whole. It cannot reject a claim for want of evidence of the worker’s reason for refusal while later finding that the refusal was, at least in part, because the worker had been denied a statutory rest break. A prohibited refusal need only materially influence a detriment claim. For automatic unfair dismissal, it must be the reason or principal reason for dismissal.

The claimant, a kitchen porter, was denied a rest break while assigned to a client site. After complaining, he refused to return to that site and was told that he would have no job if he did not do so. He was then dismissed.

The Employment Tribunal dismissed his claims for working-time detriment and automatic unfair dismissal. It found insufficient evidence that his refusal to return was because he expected to be denied breaks again. It nevertheless upheld his wrongful-dismissal claim, finding that his refusal was because he had been denied a break and had experienced a breakdown in relations with the head chef.

The claimant appealed the dismissal of the statutory claims. The central issue was whether the Tribunal’s findings established a relevant communicated refusal and, if so, whether it was the ground for the detriment and the reason or principal reason for dismissal.

1. Appeal allowed. The Employment Tribunal was entitled to ask why the claimant declined to return to the client site. Sections 45A and 101A require an explicit communication of a refusal, or proposed refusal, to comply with a requirement contrary to the Working Time Regulations 1998. Mere non-compliance is insufficient.

2. The statutory protection does not require the worker to specify the particular provision of the Regulations or positively assert a right under them. It is enough that the communicated refusal relates to a requirement which would contravene the Regulations.

3. The Tribunal’s rejection of the statutory claims was inconsistent with its later finding that the claimant refused to return because he had been denied his rest break, as well as because of his relationship with the head chef. Even if there were two reasons, the finding established a communicated refusal to work under arrangements contrary to the Regulations.

4. The employer’s threat of dismissal was materially influenced by that refusal. The EAT therefore set aside the rejection of the section 45A complaint and substituted a finding that the detriment claim succeeded.

5. The section 101A issue required a different inquiry: whether the protected refusal was the reason, or principal reason, for dismissal. The Tribunal’s findings did not conclusively resolve whether the dismissal was principally caused by the refusal concerning the client site, rather than also by the refusal to attend another client site. That issue was remitted to the same Tribunal, if reasonably practicable.

• Employment Appeal Tribunal: Allowed the claimant’s appeal. It substituted a finding that the section 45A detriment complaint succeeded and remitted the section 101A automatic-unfair-dismissal issue to the same Employment Tribunal.
• Employment Tribunal, London Central: Judgment sent to the parties on 27 September 2018. It dismissed the working-time detriment and automatic-unfair-dismissal claims, but upheld the claimant’s breach-of-contract claim.