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Employer’s instruction to cover colleague’s holiday breached statutory right

Makbool Javaid, Partner - Simons Muirhead & Burton

In the recent case of Simoes v De Sede UK Ltd, the Employment Appeal Tribunal (EAT) confirmed that an employee can bring a claim for automatic unfair dismissal under s104 Employment Rights Act 1996 if they are instructed to infringe their statutory rights, even if the infringement has not actually occurred.

Miss Simoes was employed from 29 June 2018 as a sales assistant by De Sede UK Ltd, a manufacturer and seller of exclusive leather furniture and bags. 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.

On 10 July 2018 Miss Simoes was instructed by her employer to cover her manager’s pre-booked holiday. She initially agreed, but once she realised that she would have to work for over 14 consecutive days, in breach of Regulation 11 of Working Time Regulations 1998 (the Regulations), she declared to her employer that this instruction was “treating her like a slave”.

Under the Regulations, employees have the right to 24 hours uninterrupted rest in each seven day period. Ms Simoes’ employer refused to provide any temporary cover and despite her complaints, she worked the hours in question as instructed. Two days after her manager returned from holiday, Miss Simoes was given notice of termination.

The Employment Tribunal initially concluded that although there were multiple reasons for Ms Simoes’ dismissal, the main one was her complaint in relation to her working hours. Regardless, the tribunal dismissed her claim for automatic unfair dismissal on the basis that, at the time of her complaint, the breach of the Regulations had not yet occurred. The EAT concluded that Miss Simoes had been automatically unfairly dismissed, overturning the Tribunal’s decision.

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