Key takeaways
Employers can dismiss for serious regulatory breaches
Clear evidence and fair process remain essential safeguards.
Working time compliance is a contractual obligation
Failure to adhere may justify termination in certain cases.
Documented investigations reduce risk of tribunal claims
Transparency and consistency strengthen employer position.
An employment tribunal has confirmed that an employee who held two roles with the same employer was fairly dismissed after it was discovered that her combined working hours breached the Working Time Regulations 1998 (WTR).
Background
The employee had been working two cleaning jobs for the same employer (one during the day and one at night at different locations), following a TUPE transfer. Her total working hours amounted to 77.5 hours per week, significantly exceeding the legal limit for night workers under Regulation 6(1) of the WTR, which restricts night work to an average of eight hours in any 24-hour period.
Upon discovering the breach, the employer suspended and subsequently dismissed her from the lowest paying role. She brought claims for unlawful deductions from wages and breach of contract, arguing that her suspension and dismissal were unjustified.
Tribunal decision
The tribunal dismissed all claims, finding that:
The employee had deliberately concealed her working hours.
Her contract was performed illegally, breaching WTR and contrary to public policy.
There was no opt-out available for the night work limit, and failure to comply could result in offences under Regulations 29 and 29B of the WTR.
She was barred by statutory and common law illegality from enforcing her contract.
The tribunal relied on principles from Okedina -v- Chikale [2019] EWCA Civ 1393 and Enfield Technical Services Ltd -v- Payne [2008] EWCA Civ 393, concluding that her knowing participation in illegal working hours, combined with the health and safety risks associated with night work, justified denying her claims.
Dismissal was fair
Even if the illegality bar had not applied, the tribunal found the dismissal to be potentially fair under section 98(2)(d) of the Employment Rights Act 1996, which covers dismissal for contravening a statutory restriction. The employer had followed a fair procedure, offering the employee reduced hours in one role to comply with WTR and retain her employment.
Practical implications for employers
Employers must actively monitor working hours, especially where employees hold multiple roles.
Breaches of WTR can justify dismissal and may prevent employees from enforcing contractual rights.
Transparency and proactive compliance with health and safety legislation are essential, particularly for night work.
