Unfair dismissal claims can succeed if there is automatic breach of statutory rights - Jack Boyle

The specifics of an employee’s working hours are an essential aspect of the employment relationship that should be clearly detailed in the contract of employment.

Jack Boyle is a Director in the Employment Law team at Blackadders
Jack Boyle is a Director in the Employment Law team at Blackadders

The law imposes certain rules around working hours and in the following case, these rules came under the microscope of an employment tribunal. The focus in this case was the maximum legal weekly working hours (48, subject to certain caveats).

Mrs McMahon was employed by Heron Financial Limited as a Mortgage Adviser. She had been employed for almost two years at the time of dismissal (this is important because, usually, only an employee with two years’ continuous employment can claim unfair dismissal). As part of her role, she would meet clients at show homes on various development sites. She worked one day a week from home, splitting the rest of her time between the office and sites.

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She worked long hours, sometimes up to 12 hours per day with no break. She also worked in the evenings and at weekends, returning calls and paperwork. Her employment contract provided for a minimum of 40 hours per week. By law, an employee cannot work in excess of 48 hours per week unless they sign an opt-out agreement. There was no opt-out signed in this case.

Mrs McMahon’s employment was subject to a six-month probation period for her performance and suitability to be assessed. No issues were raised in that period and she also received her commission payments having met the threshold earnings in her first year.

After a two-week period of sickness absence, Mrs McMahon returned to work and met with her boss. She raised some issues about her commission pay being short, and also concerns about working too many hours, in excess of 48 per week.

Her position was that the long hours were stressing her out and that she wanted to reduce them. She based this discussion largely on private research about the maximum working hours being set at 48 in the UK. Two working days later, Mrs McMahon was arriving at an external site for a monthly meeting with her colleagues when she received a text message indicating that one of the directors wanted to see her. She attended this meeting and was dismissed, allegedly for poor performance. She was made to hand back her phone and laptop. Reference was made to a text message between Mrs McMahon’s boss and the director who dismissed her in which it was stated that “she was always moaning”.

Following her sacking, she lodged an employment tribunal claim for unfair dismissal and other payments relating to commission. Mrs McMahon did not have two years’ continuous employment, so how, could she claim unfair dismissal? There are a number of niche claims that allow employees to claim unfair dismissal with less than two years’ service. These are known as automatically unfair dismissal and can apply where the employee does something which is protected in law, and is subsequently dismissed for doing that protected act.

In this case, the protected act in question was that Mrs McMahon had asserted that a statutory right was being breached. In particular, she had alleged that her employer had infringed the Working Time Regulations 1998 by allowing her to work in excess of 48 hours in a week (without having signed an opt-out permitting this).

The question which the tribunal had to address was whether she was dismissed for performance, as they claimed, or for having raised this statutory right about excessive working hours. The tribunal had to examine the facts carefully and draw the necessary inferences (an employer is unlikely to admit dismissal for an inadmissible reason).

The tribunal found the timing issue here (only two working days after her complaint she was sacked) was no mere coincidence. The lack of proper evidence from the company about poor performance together with the hasty, non-procedurally compliant manner of the dismissal all led the tribunal to side with Mrs McMahon. She was therefore automatically unfairly dismissed for asserting a statutory right.

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This case reminds employers that (i) it is possible to allow staff to work more than 48 hours per week if they sign an opt-out and (ii) be careful to assume that dismissal of an employee with less than two years’ service will always be safe.

Jack Boyle is Legal Director, Blackadders

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