Simoes v De Sede UK Ltd: EA-2019-001209-RN

Judgment concerning an appeal against a decision which found that a complaint for an automatically unfair dismissal cannot be brought if the breach of the alleged statutory right for the purposes of section 104 of the Employment Rights Act 1996 was only anticipated.

The Claimant asserted that the Respondent, a previous employer, had infringed her rights under Regulation 11 of the Working Time Regulations 1998 (WTR). This was on the basis that she had been instructed to cover a colleague’s holiday hours, even though this meant her working fourteen consecutive days. The Claimant argued that this constituted an infringement of a statutory right and therefore her subsequent dismissal was an autonomically unfair dismissal under section 104 of the Employment Rights Act 1996 (ERA). These claims were dismissed by the Employment Tribunal (ET) on 14 November 2019 on the basis that the complaint was merely of an anticipated infringement of Regulation 11 and that the anticipation of a breach of a statutory right, following Spaceman v ISS Mediclean Ltd (T/A ISS Facility Service Healthcare) [2019] IRLR 512, was insufficient for the purposes of section 104. The Claimant appealed this decision.

The appeal succeeded. The Employment Appeal Tribunal held that for Regulation 11 to be infringed, it was not necessary for the shift pattern to have been completed in this case as it was the Respondent’s instructions that allegedly infringed the Claimant’s rights. According to Stacey J, the matter had “crystallised” when the Claimant was “instructed to work that rota, and the Claimant’s complaint consequently came under section 104 of the ERA. The judgment of the ET was therefore substituted with a finding of automatically unfair dismissal.

Published: 10/09/2021 12:32

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