Appeal No. UKEAT/0464/11/JOJ

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

		At the Tribunal
		On 3 February 2012

Before
THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
MR I EZEKIEL
MR D J JENKINS OBE

(1) MRS Y AJAYI
(2) MR A OGELEYINBO	APPELLANT

AITCH CARE HOMES (LONDON) LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS ALISON GURDEN
(of Counsel)
Instructed by:
Brighton & Hove Race Project
Brighton Media Centre
68 Middle Street
Brighton
BN1 1AL	
For the Respondent
	MR DOUGLAS LEACH
(of Counsel)
Instructed by:
Doyle Clayton Solicitors Ltd
Sovereign House
Vastern Road
Reading
RG1 8BT	

SUMMARY
UNFAIR DISMISSAL – Automatically unfair reasons
WORKING TIME REGULATIONS

An Employment Tribunal was right to hold that the ‘refusal’ or ‘proposed refusal’ of an employee to accept a contravention (or proposed contravention) of the Working Time Regulations by his employer had to be communicated in advance to the employer, and that accordingly s.101A of ERA 1996 did not operate to render unfair the dismissal of two employees found sleeping on duty, notwithstanding their subsequent assertion that they were exercising their rights to a rest break at the time, and refusing by conduct to accept their employer’s failure to provide for any break.

THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
Introduction
1.	This is an appeal from a Judgment of an Employment Tribunal at Southampton of 18 January 2011.  That Tribunal considered the claims of two Claimants that they had been unfairly dismissed.  The claims were not brought under sections 94 and 98 of the Employment Rights Act 1996 because neither Claimant had sufficient qualifying service.  Rather, it was said that the dismissals were unfair and the Tribunal had jurisdiction because section 100, relating to health and safety cases, section 103A, relating to protected disclosures, section 104, relating to the assertion of a statutory right, and section 101A, relating to working time cases, were such that the dismissals were automatically unfair.  The central question here arises under section 101A.  That provides, so far as material, as follows:

“(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee—
(a) refused (or proposed to refuse) to comply with a requirement which the employer imposed (or proposed to impose) in contravention of the Working Time Regulations 1998,
(b) refused, or proposed to refuse, to forego a right conferred on him by those Regulations […].”

The facts
2.	The Claimants were employed as waking night support workers.  Mrs Ajayi was a permanent employee; Mr Ogeleyinbo was a bank worker.  They worked at Lambourne House.  As we understand it, within Lambourne House were a number of vulnerable residents.  They might suffer seizures, they might need to have pads changed, and some were autistic and required a regular regime.  The Employment Tribunal found that the employer expected waking night support workers, as the name might suggest, to be alert at all times.  On 15 January 2008, after the first employment of Mrs Ajayi, a memorandum from the then manager of the home made it clear that sleeping on duty would usually be dismissible, and there would be spot checks to ensure that that was not occurring.  In early July 2008 that message was reinforced by the new manager of the home, a Mrs Pirks, whom the Tribunal accepted had spoken to the staff to say so, emphasising the importance of not being asleep because of the particular demands of the residents of the home.

3.	Very shortly after, on 12 July, Mrs Pirks conducted a spot check.  On that night she found both Claimants, who were the workers on duty, sleeping in the lounge; she was attracted to this by hearing one snoring.  It was some 10 to 15 minutes later that she woke them up.  They did not then assert that they were within their rights to have been asleep, but, to the contrary, begged Mrs Pirks not to report them to their employer.  Each was interviewed separately as part of a disciplinary process, Mrs Ajayi first, Mr Ogeleyinbo on the next day.  When he was interviewed for the first time he asserted that he had a right to a break, and it is that rest break that he was taking when found asleep, although he said snoozing, ready to wake, and not fast asleep, as Mrs Pirks had thought.

4.	On 22 July each was dismissed; they appealed.  On 15 August those appeals were dismissed.  That was consistent with the approach that the employers had over the years taken to anyone in similar circumstances who had been found asleep; all had been dismissed, save one, in respect of whom there were apparently exceptional circumstances.

5.	The Employment Tribunal decision dealt with the other heads of claim, as to which there is no appeal before us.  Having set out the provisions of section 101A, it came at paragraph 36 to its conclusion:

“We now turn to the complaint of unfair dismissal under Section 101A.  Did the respondent dismiss the claimants because they refused or proposed to refuse to comply with the requirement of the employer imposed in contravention of the Working Time Regulations, or refused or proposed to refuse to forego a right conferred on them by the Regulations?  Beyond a recital that they had rights, there was no evidence advanced before the Tribunal of any refusal or proposed refusal to comply or forego rights as required by the statutory provision, let alone any suggestion that such refusal was the reason for their dismissal.  We repeat our conclusion as to the reasons why the respondent dismissed the claimants.  For such reasons this complaint necessarily is dismissed.”

6.	That reasoning therefore contains two strands.  Turning to its relationship to section 101A, which was the section under which the claim was brought, the statute requires the Tribunal to identify the reason, or, if more than one, the principal reason, for the dismissal.  The Tribunal in this paragraph, as it had repeatedly in earlier paragraphs, held that what was in the mind of the employer was simply that the Claimants had been sleeping on duty; that was the entirety of the focus of the employer.  As it put the matter in paragraph 34, they were:

“[…] wholly satisfied that the [employer] dismissed for one reason and one reason alone because of the claimants being found asleep at work.”

7.	The second strand of the reasoning in paragraph 36 was that there had been no refusal or proposed refusal to comply with a requirement or to forego rights.  This approach therefore regarded the mere fact of being asleep in circumstances in which it might be argued that there was an entitlement to be asleep was not a refusal or proposed refusal, i.e. the Tribunal was here saying, implicitly but clearly, that for there to be a refusal or a proposed refusal that had to be communicated to the employer at a relevant time, and that it was not to be implied merely from the fact of being asleep that there was a refusal to comply with a requirement.

8.	The issue for us is that therefore identified by Underhill J, as President of this Tribunal, who wondered whether it might be arguable that:

“The Tribunal evidently thought that [the] subsection only applied in cases where there had been an explicit requirement by the employer that the employee forego the rights in question […] and a refusal by the employee to do so […].  It was no doubt right to find that neither of those occurred in this case; the most that happened, even on the Appellants’ case, was that they exercised a right that the employer had never expressly accorded to them.  The Tribunal’s approach may be right, but it does not seem to me self‑evidently right […].”

9.	The issue therefore is whether by being asleep the employees were implicitly refusing the instruction issued to them in contravention of Working Time Regulations 1998.

The appeal
10.	Before us the argument has raised much more widely than that narrow issue might suggest.  The issue is one, essentially, of statutory construction and the application of the statute to the facts.  If, let us suppose, being asleep in contravention of a requirement not to be asleep during the night imposed by the employer was by itself a refusal, without any prior communication between employee and employer to that effect, then a dismissal for being asleep would be a dismissal not only for being asleep on duty but for the refusal.  Thus, although there are two strands to the Tribunal’s reasoning in paragraph 36, as we have identified, both, it seems to us, are answered here by determining what in the context of the Act and the Working Time Regulations is meant by a refusal in section 101A(1)(a) and (b), and whether such a refusal could be conveyed implicitly by ignoring the employer’s instruction without any prior indication that that would be the case.

11.	For the Appellants, Ms Gurden has argued that there was a right under the Working Time Regulations to have a rest break.  That right arises under Regulation 12.  It provides:

“(1) Where an adult worker’s daily working time is more than six hours, he is entitled to a rest break.
(2)  The details of the rest break to which a worker is entitled under paragraph (1), including its duration and the terms on which it is granted, shall be in accordance with any provisions for the purposes of this regulation which are contained in a collective agreement or a workforce agreement .”

12.	We would observe that the provision is not, as it has sometimes been represented to be, that after six hours an employee is entitled to a break.  The provision of a break is not afforded by the minute‑specific passage of the hand around the clock.  If, for instance, a worker’s daily working time was eight hours, he would be entitled to a rest break, but whether it came at three hours, after four hours or after six would be a matter for discussion and decision with the employee concerned by the employer in recognition of the right.

13.	The rest break must be one of not less than 20 minutes.  No upper limit is given.  Again, we see within this Regulation a need for the employer to consider how long the rest break should be.  No doubt where a collective agreement or workforce agreement is in force this will be with the appropriate parties to that agreement other than the employer.  The fact that the Regulations themselves say “not less than 20 minutes” does not give carte blanche to an employee who has worked, let us suppose, six hours of what would nominally be a 12‑hour shift to then take a break that lasts for the remaining six hours.  The example illustrates what seems to us to be essential in everyday employment practice, which is that the Regulation sets out the structure within which the rights will be discussed, negotiated and agreed between employer and employee.  There is a minimum guarantee, but there is no precise provision.

14.	The Tribunal here were fiercely critical of the employer in failing altogether to appreciate that at Lambourne House there should have been breaks for which no provision had been made.  In its conclusions it described the employer as wholly unencumbered with any appreciation of their statutory obligations in this area and as being oblivious to such rights.  There had never been any of the discussion or the laying down of the acceptable parameters within the context of this employment of that which the application of Regulation 12 would require, let alone any detailed consideration or agreement as to whether within a rest break it would be appropriate for the employer to say (if an employer legally could, which we do not determine in this case, thinking it unnecessary to do so) that an employee could not go to sleep.  We see much to be said for the argument that a rest break means a rest from duty, which on a common view of the words might suggest that an employee could during that break legitimately have a snooze or a catnap; but we do not determine that point now, it being unnecessary to do so.

15.	The argument for the Appellants is that within a rest break an employee could (within obvious limits) do whatever the employee wanted.  The rest break is the employee’s own time; the time is given with a view to health and safety to give relief from the burdens and responsibilities of duty for that brief period.  Thus, leaving aside extreme examples, an employee could take a period of sleep should the employee wish to do so.  That view is challenged before us by Mr Leach, who draws attention to implicit indications elsewhere within the Regulations that an employer may, depending upon the requirements of the particular employment, be able to proscribe some activities during such a break whilst still being within the terms of the Regulations themselves.

16.	The argument for Ms Gurden seems to us to be beside the point.  The question, as we have identified it, is whether the Tribunal here was in error of law in coming to the conclusion it did in paragraph 36.  As to this, Ms Gurden argues that a refusal can be silent.  There is no obligation on the employee to say that the employee wishes to have a rest break and to do whatever the employee might wish legitimately to do within that period of rest.  The Employment Tribunal did not appreciate that; it should have regarded a refusal as something that was subjective and could be unexpressed.  The position might be different if a collective agreement provided for the rest breaks.  She supported that approach by reference to the case of Joao v Jury’s Hotel Management (UK) Ltd UKEAT/0210/11, a decision of this Tribunal.  That, however, was a case that considered section 100(1)(c); it did not therefore deal with section 101A.  As Mr Leach pointed out, it was a case in which the Tribunal thought that the reasonableness of the view of the employee was relevant to the issues that it had to consider.  That, however, arises because of the wording itself of the statute.  In section 100(1)(c) provision is made in a health and safety case for a dismissal of an employee for the reason that being an employee he brought circumstances connected with his work to his employer’s attention which he “reasonably believed were harmful or potentially harmful to health or safety”.  There is no similar statutory provision for reasonable belief in the context of section 101A; we accept that submission by Mr Leach.

Discussion
17.	Ultimately, as it seems to us, the decision in this case comes to the question of whether or not a refusal can be implicit or whether it has to be explicit.  We have come to the firm conclusion that it must be the latter and cannot be the former.  These are our reasons.  

18.	First, on a commonsense and natural reading of the statute a refusal consists of more than simply not doing something.  That was obviously the view that the Tribunal here took, as to which they did not appear to appreciate that there was any scope for argument.

19.	Secondly, the word used in the statute is “refusal”, or “proposed to refuse”.  If simple non‑compliance with a requirement that the employer had imposed or proposed to impose in contravention of the Working Time Regulations had been sufficient, Parliament would not have used the words “refused” or “proposed to refuse”; instead, there would have been some expression such as “failed” or “did not comply”.  The words “refused”, or “proposed to refuse”, thus have a particular force.

20.	It seems to us, thirdly, that to read “refusal” as being sufficiently indicated in most circumstances, and certainly circumstances such as the present, by the non‑compliance by an employee with an instruction from the employer would be to create difficulties in the practical application of the section that Parliament could not have intended.  Thus an employer would simply not know that an employee had refused, in circumstances such as the present, to comply with a requirement he had made unless and until he discovered the employee doing something to the converse.  This does not fit with the pattern generally to be seen in employment legislation which looks for co‑operation, discussion and consultation between the employer and the employee.  These are general concepts, but the idea, for instance, that simply being asleep at any time of the working shift might be regarded as a refusal to comply with a requirement in contravention of the Working Time Regulations is fraught with difficulty.  If for instance there had been an earlier occasion when the right had been exercised by sleeping earlier on the same shift, could it be said that on the later occasion there was a second exercise?  Could it be said that the second period of catnapping was exercising the right, even though the first episode was not?  All this points to the need for communication, which the word “refusal” suggests.

21.	Fourthly, this view is supported by the policy considerations that we have already mentioned in respect of working out the impact of the Working Time Regulations in any given situation.  Regulation 12 contains flexibility.  It provides for minimum rights; it does not specify precise rights.  What those minima mean in any given case must sensibly be the product of thought, and, we would hope, discussion and consultation, so that the provisions are well understood.  As against this, it might be said that the words in brackets, “or proposed to refuse”, would indicate that a refusal might take place at the time that the requirement bites, whereas the proposal to refuse, undoubtedly itself communication, would take place earlier.  However, it seems to us this is much more likely to be a reflection of the words in brackets after those relating to the employer, “imposed (or proposed to impose) in contravention of the Working Time Regulations”: that the proposed refusal occurs when there is a proposed inposition.

22.	It should be noted, finally, that section 101A(1)(a) assumes that the employer is in contravention of the Working Time Regulations.  That alone does not give the employee the protection of the section if he acts so as to take his rights, assuming that that is what his conduct consists of.  The refusal must be additional to the contravention.

Conclusion
23.	It follows that, for those reasons, we consider that the Employment Tribunal here was entirely correct to say, in much shorter but entirely accurate terms, that which it did in paragraph 36.  It follows that the dismissal was not by reason of any refusal, and, further, we should add that as a matter of fact and finding of fact the Employment Tribunal saw no refusal or proposed refusal of the required sort in this case.  That must be an end to this appeal, which is, accordingly, dismissed.