Sometimes you have to admire the creative thinking of certain lawyers.
A permanent employee and a bank worker were employed as waking night support workers in a home where there are a number of vulnerable residents. The residents were vulnerable because they might suffer seizures, they might need to have pads changed and some were autistic and required a regular regime. The employer expected waking night support workers to be alert at all times and had made it clear that sleeping on duty would usually be dismissible and that there would be spot checks. In early July 2008 that message was reinforced by the new manager of the home who spoke to the staff, emphasising the importance of not being asleep because of the particular demands of the residents of the home.
Shortly thereafter the manager conducted a spot check and was attracted to one of the lounges in the home by the sound of snoring. Ten to fifteen minutes later she woke up both Claimants. They did not assert that they were within their rights to have been asleep but begged her not to report them to their employer.
They were both subsequently dismissed.
Despite not having one year's continuous employment they claimed unfair dismissal under Section 101A of the Employment Rights Act. This provides that a dismissal is automatically unfair if the reason for it is that an employee refused or proposed to refuse to comply with a requirement which the employer imposed or proposed to impose in contravention of the Working Time Regulations. There is no qualifying period for such a claim.
The Claimants said that their behaviour in sleeping amounted to a refusal or proposal to refuse to comply with a requirement the employer imposed in contravention of the Working Time Regulations in that they said they were taking a break as allowed by the Regulations.
The Tribunal rejected the claims of unfair dismissal. It found that the Claimants had been dismissed for the sole reason that they had been sleeping at work and the fact of being asleep did not amount to refusal or proposed refusal to comply with a requirement in contravention of the Working Time Regulations or to forego rights.
The employees appealed to the Employment Appeal Tribunal (EAT), arguing that they were, by their conduct, (i.e. being asleep) implicitly refusing to comply with an instruction that contravened the Working Time Regulations.
The EAT held that for a dismissal to be automatically unfair under Section 101A not only must the employer have imposed or proposed to impose a requirement in contravention of the Regulations, the employee must also have refused or proposed to refuse to comply with the requirement and been dismissed as a result.
The EAT said that a refusal must be an express refusal and that common sense dictated that a refusal consists of more than not doing something. The word "refusal" requires communication.
An employee who does not want to accept a denial of a rest break required by the Working Time Regulations must communicate that objection to the employer without delay. If they do not, they are unlikely to enjoy the protection of Section 101 against a detriment or dismissal as a result of that refusal.