Working Time – Shop Worker’s Automatic Unfair Dismissal Claim Upheld

If you have been sacked for asserting your statutory rights, an employment lawyer will see to it that you are justly compensated. The point was powerfully made by the case of a retail sales assistant who complained that, by instructing her to work on 14 consecutive days, her employer was treating her like a slave.

The woman was very upset when her employer asked her to work continuously for a fortnight whilst her manager was on holiday. No satisfactory solution was found and the employer refused to engage temporary staff to provide cover. She worked the hours, as instructed, and was given notice of termination of her employment two days after the manager returned from leave.

After she launched proceedings, an Employment Tribunal (ET) found that, prior to her manager going on holiday, she had made a valid assertion that the employer’s instruction that she work 14 days on the trot breached her rights under Regulation 11 of the Working Time Regulations 1998.

However, the ET dismissed her claim that she had been automatically unfairly dismissed for asserting a statutory right, contrary to Section 104 of the Employment Rights Act 1996. It did so on the basis that, when she made the assertion, the alleged breach of her rights was only anticipated or threatened.

Upholding her challenge to that outcome, the Employment Appeal Tribunal (EAT) found that, in order for her claim to succeed, it was not necessary for her to have worked the instructed hours prior to making the assertion. It was the employer’s instruction itself that was alleged to have infringed her rights and her assertion thus fell within the ambit of Section 104.

She had made the assertion in good faith and it did not matter whether it was well-founded. The ET had made a clear finding that her complaint about her working hours was the principal reason for her dismissal. In the circumstances, the EAT substituted a finding that her dismissal was automatically unfair. The amount of her compensation would be assessed at a further hearing, if not agreed.