Employment Rights Act 1996, section 101A

Working time cases

Part X Unfair dismissal

[F670 1F670] An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee—

(a) refused (or proposed to refuse) to comply with a requirement which the employer imposed (or proposed to impose) in contravention of the M33 Working Time Regulations 1998,

(b)refused (or proposed to refuse) to forgo a right conferred on him by those Regulations,

(c)failed to sign a workforce agreement for the purposes of those Regulations, or to enter into, or agree to vary or extend, any other agreement with his employer which is provided for in those Regulations, or

(d)being—

(i)a representative of members of the workforce for the purposes of Schedule 1 to those Regulations, or

(ii)a candidate in an election in which any person elected will, on being elected, be such a representative,

performed (or proposed to perform) any functions or activities as such a representative or candidate.

[F671 (2)A reference in this section to the Working Time Regulations 1998 includes a reference to

[F672 (a)F672] the Merchant Shipping (Working Time: Inland Waterways) Regulations 2003.

[F673 (b)the Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004.F673]

[F674 (c)the Cross-border Railway Services (Working Time) Regulations 2008F674]

[F675 (d)the Merchant Shipping (Maritime Labour Convention) (Hours of Work) Regulations 2018 (S.I. 2018/58).F675,F671,F669]]]

Definitions used in section 101A 2

employee

(1) In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.

Defined in s.230(1) · see it in the full Act
employer

(4) In this Act “employer”, in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed.

Defined in s.230(4) · see it in the full Act

(6) This section has effect subject to sections 43K , 47B(3) and 49B(10) ; and for the purposes of Part XIII so far as relating to Part IVA or section 47B, “worker”, “worker’s contract” and, in relation to a worker, “employer”, “employment” and “employed” have the extended meaning given by section 43K.

Defined in s.230(6) · see it in the full Act

Cases considering section 101A 5

Pazur v Lexington Catering Services Ltd

[2019] UKEAT 0018_19_2008 · 20 August 2019Interprets

Section 101A was applied to the automatic-unfair-dismissal complaint. The protected refusal had to be the reason or principal reason for dismissal, a question remitted to the Employment Tribunal. The EAT held that an explicit refusal or proposal to refuse compliance with a requirement contrary to the Working Time Regulations may engage this paragraph. The protected refusal must then be the reason or principal reason for dismissal. The EAT observed that the automatic-unfair-dismissal claim could more straightforwardly have been advanced under this paragraph because the alleged requirement was that the claimant forgo rest breaks. The pleading point did not affect the claim’s validity.

Ross v Eddie Stobart Ltd

[2011] UKEAT 85_10_1605 · 14 January 2011Limits

The dismissal protection applies to requirements imposed in contravention of the Working Time Regulations 1998 and to rights conferred by those Regulations. It could not be read to include the omitted Road Transport Regulations. (see paras [47]-[54]) The express list of additional sectoral regulations did not include the Road Transport Regulations. No interpretative technique could add them to that statutory list. (see paras [51]-[54])

Ross v Eddie Stobart Ltd

[2013] UKEAT 0068_13_0808 · 8 August 2013

Section 101A was treated as the dismissal counterpart to working-time detriment protection and as a comparable automatic-dismissal protection. (see [3]; [22]-[23])

1 more judgment, and what each says about section 101A, are in the case-law panel in the full Act.

Amendments and notes

8 notes from legislation.gov.uk

Amendments

  1. F669S. 101A inserted (1.10.1998) by S.I. 1998/1833, reg. 32(1)
  2. F670S. 101A renumbered as s. 101A(1) (24.12.2003) by The Merchant Shipping (Working Time: Inland Waterways) Regulations 2003 (S.I. 2003/3049), reg. 20, Sch. 2 para. 3(3)
  3. F671S. 101A(2) inserted (24.12.2003) by The Merchant Shipping (Working Time: Inland Waterways) Regulations 2003 (S.I. 2003/3049), reg. 20, Sch. 2 para. 3(3)
  4. F672Words in s. 101A(2) renumbered as s. 101A(2)(a) (16.8.2004) by The Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004 (S.I. 2004/1713), regs. 1, 22, Sch. 2 para. 2(3)(a)
  5. F673S. 101A(2)(b) inserted (16.8.2004) by The Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004 (S.I. 2004/1713), regs. 1, 22, Sch. 2 para. 2(3)(b)
  6. F674S. 101A(2)(c) inserted (27.7.2008) by The Cross-border Railway Services (Working Time) Regulations 2008 (S.I. 2008/1660), reg. 19, Sch. 3 para. 2(3)
  7. F675S. 101A(2)(d) substituted (6.4.2018) by The Merchant Shipping (Maritime Labour Convention) (Hours of Work) Regulations 2018 (S.I. 2018/58), reg. 1, Sch. 2 para. 2(b) (with regs. 3, 4)

Marginal citations

  1. M33S.I. 1998/1833