Two night-shift care workers who were sacked after being found asleep on duty and who claimed they were "asserting the right to a rest break" were not automatically unfairly dismissed, the Employment Appeal Tribunal (EAT) has found.
The EAT said that the workers' refusal to accept their employer's failure to provide for any rest break could not be implied from their being asleep, but rather should have been explicitly communicated in advance to their employer.
Ajayi and another v Aitch Care Homes (London) Ltd involved two night support workers, Mrs Ajayi and Mr Ogeleyinbo, who worked at a home for vulnerable residents. Contrary to the policy of their employer, Aitch Care Homes (London) Ltd, the workers were found asleep while on duty. Following a disciplinary procedure, Mrs Ajayi and Mr Ogeleyinbo were dismissed.
Mrs Ajayi and Mr Ogeleyinbo claimed that they were automatically unfairly dismissed for asserting the right to a rest break at the time. They argued that they were refusing by conduct to accept the company's failure to provide for any break.
The case went to the EAT, which decided that a worker's refusal to comply with a requirement of the employer - the requirement being in contravention of the Working Time Regulations 1998 - must be implicitly conveyed to the employer or explicitly communicated.
XpertHR employment law editor Sarah Anderson commented: "It seems likely that the workers in this case fell asleep while on duty, and, when they were caught out and dismissed, tried to hang their hat on a piece of legislation that protects workers from dismissal for asserting a right under the Working Time Regulations 1998. However, to obtain this protection, the EAT has now confirmed that a worker's refusal to accept the employer's requirement which contravenes the Working Time Regulations 1998 must be explicitly communicated in advance to the employer.
"While Aitch Care Homes (London) Ltd avoided an automatically unfair dismissal claim, it should be borne in mind that it did not avoid criticism for its failure to provide for any rest breaks. Employers should always ensure that workers are given the right to the rest breaks to which they are entitled under legislation."
You can read XpertHR's report of the decision in its case reports stop press section.