Employment Rights Act 1996, section 45A

Working time cases

Part V Protection from suffering detriment in employment

(1)A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker—

(a) refused (or proposed to refuse) to comply with a requirement which the employer imposed (or proposed to impose) in contravention of the M5 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,

(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,

(e)brought proceedings against the employer to enforce a right conferred on him by those Regulations, or

(f)alleged that the employer had infringed such a right.

(2)It is immaterial for the purposes of subsection (1)(e) or (f)—

(a)whether or not the worker has the right, or

(b)whether or not the right has been infringed,

but, for those provisions to apply, the claim to the right and that it has been infringed must be made in good faith.

(3)It is sufficient for subsection (1)(f) to apply that the worker, without specifying the right, made it reasonably clear to the employer what the right claimed to have been infringed was.

(4) This section does not apply where a worker is an employee and the detriment in question amounts to dismissal within the meaning of Part X F227 . . ..

[F228 (5)A reference in this section to the Working Time Regulations 1998 includes a reference to

[F229 (a)F229] the Merchant Shipping (Working Time: Inland Waterways) Regulations 2003.

[F230 (b)the Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004.F230]

[F231 (c)the Cross-border Railway Services (Working Time) Regulations 2008F231]

[F232 (d)the Merchant Shipping (Maritime Labour Convention) (Hours of Work) Regulations 2018 (S.I. 2018/58).F232,F228,F226]]]

Definitions used in section 45A 4

worker

(3) In this Act “worker” (except in the phrases “shop worker” and “betting worker”) means an individual who has entered into or works under (or, where the employment has ceased, worked under)—

(a)a contract of employment, or

(b)any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;

Defined in s.230(3) · 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
act

“act” and “action” each includes omission and references to doing an act or taking action shall be construed accordingly,

Defined in s.235(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
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

Cases considering section 45A 14

Ball v Royal Borough Of Kingston Upon Thames

[2002] EWCA Civ 1709 · 1 November 2002

The court held that the complaints did not disclose a claim under section 45A, which concerns detriment for refusing an employer’s requirement imposed or proposed in contravention of the Working Time Regulations. The provision therefore offered no reasonable prospect of success on these facts.

Pazur v Lexington Catering Services Ltd

[2019] UKEAT 0018_19_2008 · 20 August 2019Interprets

Section 45A was applied to determine the claimant’s detriment complaint. The EAT held that an explicitly communicated protected refusal materially influenced the employer’s threat of dismissal, so the complaint succeeded. The EAT held that this protection requires an explicit communication of refusal, or proposed refusal, to comply with a requirement imposed or proposed in breach of the Working Time Regulations. The worker need not identify the particular contravention. The EAT observed that the claims could more straightforwardly have been put under this paragraph because the relevant requirement was to forgo rest breaks. The pleaded reliance on paragraph (a) did not undermine the claims.

Saha v Capita Plc

[2018] UKEAT 0080_18_2911 · 29 November 2018Interprets

The court held that the working-time detriment claim was legally distinct from the protected-disclosure claim, despite the shared factual allegation. Its categorisation under section 45A did not remove the need to determine the section 43B(1)(b) claim. The Tribunal had rejected the claim on the basis that the allegation was of a future, rather than past, infringement. The Appeal Tribunal held that this reasoning demonstrated why the different prospective protected-disclosure issue required determination. The court contrasted the good-faith mechanism under section 45A(2) with the reasonable-belief and public-interest requirements of section 43B(1)(b). The difference supported remittal rather than substitution.

2 more judgments, and what each says about section 45A, are in the case-law panel in the full Act.

Amendments and notes

8 notes from legislation.gov.uk

Amendments

  1. F226S. 45A inserted (1.10.1998) by S.I. 1998/1833, reg. 31(1)
  2. F227Words in s. 45A repealed (25.10.1999) by 1999 c. 26, ss. 18(3), 44, Sch. 9(3); S.I. 1999/2830, art. 2(1)(3), Sch. 1 Pt. I, Sch. 2 Pt. I (with Sch. 3 para. 2(2))
  3. F228S. 45A(5) inserted (24.12.2003) by The Merchant Shipping (Working Time: Inland Waterways) Regulations 2003 (S.I. 2003/3049), reg. 20, Sch. 2 para. 3(2)
  4. F229S. 45A(5): words renumbered as s. 45A(5)(a) inserted (16.8.2004) by The Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004 (S.I. 2004/1713), reg. 22, Sch. 2 para. 2(2)(a)
  5. F230S. 45A(5)(b) inserted (16.8.2004) by The Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004 (S.I. 2004/1713), reg. 22, Sch. 2 para. 2(2)(b)
  6. F231S. 45A(5)(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(2)
  7. F232S. 45A(5)(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(a) (with regs. 3, 4)

Marginal citations

  1. M5S.I. 1998/1833