Seem to remember some discussion on rest breaks for night workers a few
months ago, anyway thought the case Ajayi and another v Aitch Care Homes
(London) Ltd below would be of interest.



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.

A recent decision from the Employment Appeal Tribunal (EAT) held that
workers found sleeping at work were not asserting their right to a rest

The claimants in this case were employed as waking night support workers
within a residential home that had a number of vulnerable residents. The
Employment Tribunal accepted that the claimants' jobs, by definition, meant
that they were required to be alert at all times. After having been
forewarned by a general memorandum that any employees found asleep were
likely to be subject to dismissal, the claimants were discovered sleeping on
the job. Following a disciplinary process they were dismissed.

The claimants claimed that they had been automatically unfairly dismissed on
the grounds that their dismissal resulted from the employer's refusal (or
proposed refusal) to comply with the requirement to provide rest breaks
under the Working Time Regulations 1998 (WTR). Whilst the Tribunal was
critical of the employer for not providing rest breaks, it was equally
critical of the claimants for not asserting their rights previously in order
to initiate a dialogue with their employer about taking rest breaks. The
Tribunal dismissed the claimants' claim for unfair dismissal.

On appeal, the EAT agreed with the Tribunal's approach and said that
generally in employment legislation, cooperation, discussion and
consultation between the employer and employee is key. Ultimately, the EAT
held that the refusal or proposed refusal of a worker to accept his or her
employer's contravention (or proposed contravention) of the WTR must be
communicated in advance and cannot be implied. The EAT rejected the
claimants' argument that a worker's refusal can be conveyed implicitly by
ignoring the employer's instruction not to have breaks.

The EAT clearly rejected the argument that an employee's refusal to accede
to an employer's contravention of the WTR can be silent and said that
refusal must be explicitly communicated to the employer. This case will be
of interest to any employer with night workers, and in particular those who
employ night workers who are required to stay alert, such as security
personnel. Employers should be particularly mindful that employees working
night shifts are entitled to rest breaks and should discuss with them
suitable arrangements for them to exercise their rights.


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