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…

Sep 07, 2021

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.

Trade Union Settled Employment Dispute Without Member’s Authority

When trade unions negotiate settlements of employment disputes, employers usually assume that they are acting with the authority of their members. As an Employment Tribunal (ET) ruling showed, however, there is a difference between an assumption and a certainty. The case concerned a healthcare assistant who, throughout a redundancy process, was advised by her trade union. After she and others lost their jobs, the trade union negotiated with their employer via Acas. A full and final settlement,…

Whistleblowing and the Importance of Causation – Guideline EAT Ruling

To succeed in a whistleblowing claim it is necessary to show not only that there has been a protected disclosure and a detrimental act but also that there is a causal link between the two. As an Employment Appeal Tribunal (EAT) ruling made plain, that last element is in many cases the hardest to establish. In upholding a teacher’s whistleblowing claim, an Employment Tribunal (ET) found that she had made protected disclosures about practices within the nursery school where she worked. It also…

Restructuring Exercises and Redundancy – Guideline EAT Ruling

Not every corporate restructuring or cost-cutting exercise gives rise to a genuine redundancy situation. The Employment Appeal Tribunal (EAT) made that point in addressing a risk manager’s unfair dismissal claim. Following a review of its business with a view to cutting costs, the woman’s employer resolved to consolidate its three risk teams into two. She and another risk manager were warned that they were at risk of redundancy. Following consultation and a selection process – in which she was…