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Protection against detrimental treatment
[ch 9: page 166]The Employment Rights Act 1996 protects workers against detrimental treatment or victimisation if they refuse to do something contrary to the WTR or refuse to forgo their rights under the regulations. A dismissal for this reason will be automatically unfair. The limits of this protection were explored in the following case:
Two carers for vulnerable adults fell asleep during their shift and were dismissed as a result. They argued that the dismissal was automatically unfair because by sleeping, they were asserting their statutory right to a break. The EAT rejected this argument. It held that to succeed in this kind of claim, the workers should have communicated in advance to their employer their refusal to accept the employer’s breach of the statutory right. Simply taking a rest break in these circumstances was not enough to trigger protection under the WTR. The care home was criticised for failing to provide statutory rest breaks, but the unfair dismissal claim failed.
Ajayi and another v Aitch Care Homes (London) Ltd UKEAT/0464/11