Employee Refusing to Work – Is a Threat to Dismiss an Unlawful Detriment?

Yes, where the employee’s refusal is (at least in part) influenced by a requirement to work without rest breaks.

What Does the Law Say?

Workers are protected against detriment and dismissal if the reason for the treatment is that they have refused to comply with a requirement that would breach the Working Time Regulations (WTR).

Pazur v Lexington Catering Services

Mr Pazur worked as a kitchen porter for Lexington Catering Services Ltd (LCS). Each week, he was assigned to work for various clients at different locations. During an 8 hour shift with a particular client he was denied his statutory right to a rest break of at least 20 minutes. Mr Pazur walked out despite the client wanting him to work longer. He subsequently complained to LCS but his complaints were not followed up.

Mr Pazur was later assigned to work for the same client but he refused to return. This led to LCS first threatening Mr Pazur with dismissal and subsequently dismissing him.

Mr Pazur claimed that the threat to dismiss him was an unlawful detriment and that his dismissal was automatically unfair. He argued that the reason for both the threat to dismiss him and for his subsequent dismissal was that he had refused to comply with LCS’s requirement that he work without a rest break in contravention of the WTR.

The Employment Tribunal rejected both the unlawful detriment and automatic unfair dismissal claims.

The ET was not satisfied that Mr Pazur had provided sufficient evidence to establish that his refusal to return to work for the client was because he expected to be required to work without a rest break. When giving evidence about the reasons why he had refused to return to the client, Mr Pazur had cited the unpleasant behaviour of the Head Chef as well as the rest break issue.

The Employment Appeal Tribunal allowed Mr Pazur’s appeal, finding that the requirement to work in contravention of the WTR was a material influence on Mr Pazur’s refusal to return to the client. There was no need for it to be the only reason.

Two Important Reminders for Employers

  • Be aware of the statutory entitlement to rest breaks and ensure that staff are not prevented from exercising these entitlements.
  • Follow up on any complaints about working time in a constructive way.