Regulating dismissal

McLean v Rainbow Homeloans Ltd

In general, claimants have to have been working for their employer for at least a year to bring a claim of unfair dismissal. However, there are a number of exceptions, including employees who are dismissed because they refuse to comply with a requirement imposed by their employer in contravention of the Working Time Regulations (WTR).

In McLean v Rainbow Homeloans Ltd (2007, IRLR 14), the Employment Appeal Tribunal (EAT) said that claimants do not have to show that the breach of the regulations was the actual reason they refused to comply. 

Basic facts

Mr McLean worked as a mortgage adviser from 14 April 2004 until 1 April 2005, during which time he alleged that he regularly worked between 55 and 60 hours per week. He refused to agree to a request from his employer to work additional hours at weekends, and subsequently received a letter dated 23 March giving him notice of termination of his employment.

He claimed that he had been dismissed for asserting a statutory right not to have to work more than 48 hours, in contravention of the Working Time Regulations 1998 (WTR). His employer argued that he had simply been asked to vary his working hours.

Tribunal decision

In a pre-hearing review, the tribunal chair decided that his claim could not be heard. He pointed to the fact that Mr McLean had not mentioned the Working Time Regulations during any of the discussions with his employer, and that he had, in any event, been working longer than 48 hours per week for months.  

That being so, the chair concluded that Mr McLean had refused his employer’s request because he did not want to work at weekends.  He could not, therefore, argue that he had been dismissed for asserting a statutory right in contravention of the WTR. That meant that his claim for unfair dismissal could not be heard because he did not have the requisite one year’s service.

Mr McLean appealed, arguing that his claim should have been considered under s.101A of the Employment Rights Act 1996.

Section 101A Employment Rights Act 1996

(1) 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 proposed (or proposed to impose) in contravention of the Working Time Regulations 1998 ...'

Section 108 (3) states that if the dismissal falls within section 101A, then the one-year service qualification does not apply.

EAT decision

The EAT said that the tribunal chair had made a mistake.  Under section 101A, Mr McLean just had to prove that he had refused to agree to a requirement that would have breached the WTR and that his dismissal was because of that refusal. The fact that the requirement would have breached the regulations did not have to be the reason that he refused to comply.

A dismissal in such circumstances was automatically unfair under section 101A and was "actionable" even though Mr McLean had been employed for less than a year.

It therefore allowed his appeal and remitted the case to a tribunal to be heard.