Dismissal relating to one of the claimant’s jobs was fair because she was working without the breaks required under the Working Time Directive.

The respondent is a contract cleaning company. The claimant had two contracts. The first was to clean at Deutsche Bank. She did this for forty hours per week (8am-5pm Monday to Friday). The claimant remains in that role. The second contract was cleaning for the Houses of Parliament which she did for 37.5 hours per week (10pm-6am Monday to Friday).  The second contract was taken over by the respondent and therefore the claimant’s employment moved to the respondent by TUPE transfer.

The claimant had been working this long schedule (8am-5pm; 10pm-6am) for some time.  The Tribunal outlined that it was remarkable and also recognised that the claimant had a clean attendance and disciplinary record. The respondent became aware of the claimant’s two contracts when it was the employer for both following the TUPE. They were concerned regarding the shifts and that there were 17 hours in a 24 hour period and only a five hour break in the evening and two in the morning. The claimant had made a declaration that the Houses of Parliament job would be her only job. This was deliberately hidden on the basis that she knew it breached the law on working time.

This led to the respondent dismissing the claimant from her contract to clean the Houses of Parliament without notice. They had also suspended the claimant without pay from that contract before the decision was made to dismiss.

The original correspondence to the claimant about the matter related to her welfare but also acknowledging that there could be an increased risks of mistakes or accidents as well as reputational damage with that working pattern. The claimant had signed the opt-out for the 48-hour working week. The suspension was made on the grounds of a duty of care towards employees as well as legal compliance. The investigation took place, and the decision was made to terminate the contract with the Houses of Parliament as the work at Deutsche Bank was seen as being more advantageous. The reason for this was legal compliance considering the required rest periods in the Working Time Directive.   The claimant brought a claim for unfair dismissal.

The Tribunal outlined that there was a deliberate concealment on the part of the claimant as she knew that it would breach long standing law on working time. The reason for the dismissal was that the work could not continue without contravention of the restriction imposed under the Working Time Regulations. The procedure also adopted by the respondent was regarded as being ‘clearly fair’. Accordingly, the claim was dismissed.

A clear case when looking at the Working Time Regulations and their application but a more difficult case when considering that the claimant had been doing this work for a long time and there had been no issues.  It was even acknowledged that the claimant would be not have been considered for voluntary redundancy in the role she was dismissed from considering the work that she had done and the scoring system which had been used.   The reason for the Working Time Directive is clear to allow proper rests and provide protections for employees and it is unlikely that an opt-out to that would not be subject to abuse by unscrupulous employers.  This means that the claimant here was caught in a difficult position following her transfer of her second employment to the same employer as her first employment.

You can read the case in full here.