The law says that it is automatically unfair for an employer to dismiss an employee for alleging a breach of a statutory right. In Simoes v De Sede UK Ltd, the Employment Appeal Tribunal (EAT) held that the breach in this case “crystallised” when the claimant objected to being instructed to work 14 days in a row contrary to the Working Time Regulations (WTR).
Ms Simoes, a sales assistant, was asked on 10 July 2018 to work from 28 July to 7 August to cover her manager’s pre-booked holiday. She initially agreed. However, when she realised that would involve working 14 days without a break, she raised a concern with her employer on 20 July 2018 that this would amount to a breach of her rights under the WTR. At a team meeting on 27 July, Ms Simoes indicated again that she was not happy about being asked to provide the cover. Although she ended up working the shifts, she was given notice of termination two days after her manager returned from holiday.
She complained that she had been dismissed for asserting a statutory right - namely a breach of regulation 11 of the WTR - rendering her dismissal automatically unfair under section 104 of the Employment Rights Act 1996.
The tribunal found that although there were a number of reasons for her dismissal, the principal reason was the complaint that Ms Simoes had made about her working hours.
However, it dismissed her automatically unfair dismissal claim on the basis of the decision in Spaceman v ISS Mediclean Ltd t/a ISS Facility Service Healthcare (weekly LELR 615) which concluded that “… in order to engage the protection of section 104 … a Claimant must complain about a breach of statutory right which has already taken place i.e. it must be a historic breach.” As the breach of the WTR had not occurred by the time Ms Simoes made her complaint (that is, she had not worked 14 days straight by 27 July), it could not succeed.
Upholding Ms Simoes’ appeal, the EAT held that the tribunal had not applied the case law correctly to the facts in this case. In Spaceman, the claimant had asserted during the course of his disciplinary hearing that the decision to dismiss him had already been taken. When he was subsequently dismissed, he tried to argue that his dismissal had been caused by his comment during the hearing. His assertion therefore concerned an anticipated, future breach of a statutory right, not a breach that had already occurred.
In this case, on the other hand, Ms Simoes had been instructed by 27 July to provide cover during her manager’s holiday. When she raised her concerns on that date about working 14 days without a break, she was aware that this instruction constituted a breach of her working time rights. As such, the matter had “crystalised” at the point when she was instructed to work the rota by her manager. That is, by 27 July. This case did not therefore involve an allegation of a future or intended breach. On the contrary, she had been instructed to work for 14 days without a break and alleged that this instruction constituted a breach of her statutory rights.
The EAT considered that this was not a case of “If you ask me to do that then it will be a breach of my rights” as the instruction to work 14 consecutive days had already been given. Given that the instruction amounted to a breach of her statutory rights under the WTR, she did not have to wait until she had completed the rota before asserting that they had been breached.
The case shows that it is important for claimants to be clear about which statutory right has been infringed. In this case, it was the instruction to work for 14 consecutive days and not the requirement to have worked for 14 days which Ms Simoes alleged breached her rights under the WTR. The distinction can be a difficult one to make and it is best to seek early advice.