Article / 1 Oct 2021

Instructions to work longer hours gave grounds for a claim

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Miss Alda Simoes v De Sede UK Ltd

If an employee is dismissed for asserting that the employer has breached their statutory rights, they will be able to bring a claim that they have been automatically unfairly dismissed. In Miss Alda Simoes v De Sede UK Ltd the issue was whether the protection would apply where the employee had raised concerns when instructions had been given to work extra hours rather than concerns regarding extra hours that had been worked.   

Facts

Miss Simoes was asked to work for 14 consecutive days in order to cover her manager’s holiday. She raised concerns about the lack of any days off and referred to advice from ACAS that this would breach her rights under the Working Time Regulations 1998. Her manager resented her raising these concerns directly before his holiday and when he returned Miss Simoes was dismissed. She claimed that this was an automatic unfair dismissal.

Decision

The claim had initially been dismissed on the ground that the protection could only apply in respect of a complaint regarding a statutory right that had been breached. However, The Employment Appeal Tribunal disagreed. It held that it was not necessary for the shift or work pattern to have been completed for the alleged infringement to have occurred. It was the instruction which was alleged to have infringed her rights and she qualified for the protection in relation to automatic unfair dismissal.

Key takeaway point

The employee’s assertion was that the instruction to work had breached her statutory rights. It therefore qualified her for the protection and that meant her dismissal was automatically unfair. This could be distinguished from where the assertion is that if the employer does something in the future it will breach the employee’s statutory rights, for example, in a previous case* it was held that an employee who had prior to a hearing said if you dismiss me it will be a breach of my statutory rights was not protected.

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