Rest breaks – ‘Sleeping protest’

Posted: 30th April 2012

In Ajayi and another v Aitch Care Homes (London) Ltd, the Employment Appeal Tribunal (EAT) has upheld the decision of the Employment Tribunal (ET) that an employee’s ‘refusal’ or ‘proposed refusal’ to accept a contravention or proposed contravention of the Working Time Regulations (WTR) by his or her employer must be communicated explicitly to the employer in advance if the employee then seeks to rely on protection from unfair dismissal under Section 101A of the Employment Rights Act 1996 for having exercised their right to take a rest break.
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In this case, two care home workers were dismissed after they were discovered sleeping on duty. They asserted that the dismissals were automatically unfair. They were exercising their right to a daily rest break under Regulation 12 of the WTR and were demonstrating by their conduct their refusal to accept their employer’s failure to comply with their statutory duty.
Whilst criticising the employer for failing to provide rest breaks in accordance with its statutory obligations, the ET found no evidence to support the workers argument and rejected their claims.
The EAT agreed. In its view, a refusal consists of more than simply not doing something. If refusal in this context could be indicated by mere non-compliance, this would create practical difficulties that Parliament could not have intended as, in circumstances such as these, an employer would not be aware that an employee had refused to comply with a requirement he had laid down unless and until the employer discovered the employee doing something to the contrary.