In order to claim automatic unfair dismissal under s104 Employment Rights Act in relation to a work pattern in breach of the Working Time Regulations, is it necessary for an employee to have worked the shift they had been instructed to perform?
Not necessarily, held the EAT in Simoes v De Sede UK Ltd.
The Claimant's employer instructed her to cover a colleague's pre-booked holiday. She initially accepted but, on realising this meant she would work 14 consecutive days in breach of regulation 11 Working Time Regulations, she asserted that the proposal would be "treating her like a slave".
Her employer refused to hire temporary cover. The Claimant provided the cover but was later dismissed by reason of her earlier complaint. Applying Spaceman v ISS Mediclean Ltd, the tribunal dismissed her automatic unfair dismissal claim as, at the time of the complaint, the breach had not yet occurred.
The EAT allowed the Claimant's appeal and a finding of automatic unfair dismissal was substituted. The EAT held the matter crystalised when she was instructed to work. Distinguishing Spaceman, the assertion was not an allegation of future or intended breach such as 'If you ask me to do that then it will be a breach of my rights' but instead the instruction itself constituted a breach of her statutory rights.
Thanks to Barnaby Large of No.18 Barristers Chambers for preparing this case summary.