can an instruction to work 14 consecutive days amount to a breach of the Working Time Regulations

Yes, held the Employment Appeal Tribunal (EAT) in the matter of Simoes v De Sede UK Ltd.

Ms Simoes was employed as a sales assistant for De Sede. Ms Simoes was asked to work 14 consecutive days to provide cover for her manager’s pre-booked annual leave. This was a breach of the working time regulations. The Working Time Regulations 1998 (WTR) provides that a worker is entitled to an uninterrupted rest period of not less than 24 hours in each seven-day period.  Ms Simoes complained but was required to work the shifts in any event leading to a breach of working time regulations. Following his return from annual leave Ms Simoes’s manager dismissed her claiming a breakdown in the relationship. 

Ms Simoes brought a claim of automatic unfair dismissal in the Employment Tribunal (ET) relying on section 104 of the Employment Rights Act 1996 (ERA) and / or section 103A ERA for making a protected disclosure. 

In respect of s.104 an employee can claim unfair dismissal if the reason or the principle reason for their dismissal is because they have asserted a statutory right (in this case, Ms Simoes was claiming that De Sede was breaching Regulation 11 of the WTR) and the employer has infringed that right. Relying on dicta from Spaceman v ISS Mediclean Ltd the ET held that s.104 provides that there must have been an infringement of a statutory right, not merely an anticipation or threat of future infringement. The ET held that the instruction alone could not constitute an infringement. The ET dismissed her claims.

Ms Simoes appealed this decision. The EAT allowed her appeal in respect of the s.104 claim only. Ms Simoes argued that her employer’s instruction did amount to an infringement of her rights under Regulation 11. The EAT agreed. Distinguishing from Spaceman, the EAT stated that Ms Simoes was reasonably clear that there was a breach of the working time regulations and that the matter had “crystalised” when she was “instructed to work”. Ms Simoes’s appeal succeeded. The Tribunal judgment was substituted for a finding of automatic unfair dismissal, and it has been referred back to the ET for a remedy hearing.  

You can read the full judgment here.

This update was written by Joanne Sinclair, Trainee Solicitor, didlaw.