The claimant fire fighters worked at the Llanelli Fire Station. Their terms and conditions gave their employer, the local fire service, the power to transfer them within its geographical area.
The work pattern at the Llanelli Fire Station was a "2-2-4" system: a shift pattern of two day duties, two night duties and then four days off. By contrast, a self-rostered crewing (SRC) system had been introduced elsewhere. This involved shifts made up of a daytime duty and a night-time on-call element. Under the 2-2-4 system, at any one time there would be a large number of fire fighters being paid but not actually working. The employer took the view that the SRC would be a more effective use of manpower and resources at Llanelli; the Fire Brigades Union (FBU) wanted to retain the 2-2-4 system.
An opt-out under the Working Time Regulations (WTR) was needed if individual fire fighters were to work both day and night elements of SRC, but not if only the day element was worked. The employer told the FBU that, where individuals wanted to cover the daytime element only, that would be acceptable. Alternatively, they could continue to work the 2-2-4 system, but at a different station.
Matters came to a head when letters drafted by the FBU were handed to the employer from all members of the Llanelli crew, stating their refusal to opt out of the WTR. The employer decided to go ahead with SRC and wrote to the workforce seeking expressions of interest, explaining that those wanting to remain on the 2-2-4 system would be transferred to other stations. Ultimately, the SRC was introduced at Llanelli and employees who declined to accept the new system were transferred to other stations.
A further issue was subsequently raised by the FBU about the issue of WTR rest breaks under the SRC system.
Workers have the right not to be subjected to a detriment on the grounds of three separate WTR aspects:
- They refuse to comply with a requirement imposed (or proposed) by the employer in contravention of the WTR.
- They fail to sign a workforce agreement allowing an opt-out.
- They refuse to give up a WTR right.
In each case, "refuse" includes proposing to refuse.
On the facts of this case, there had been a detriment (being moved from Llanelli) but it was not as a result of any of these three aspects of the protections:
- The claimants had maintained that, in reality, daytime-only working (which would not have contravened the WTR) could not be extended to all those who might want it and the only way SRC could work would be if opt-outs were entered into. They argued that the employer's proposal amounted to a contravention of the WTR if the claimants did not sign opt-outs. But the tribunal had found on the evidence that the employer's proposal would have allowed those who wanted to work daytime hours only to do so. Timing was crucial here. At the point in time when the employer decided to go ahead with the move to SRC, they had not imposed, or proposed to impose, any requirement that would have contravened the WTR.
- The employer had not asked the claimants to sign an opt-out. It was not required except for those working both day and night under the SRC and, at most, the claimants had pre-empted any such request by signifying that they would not do so if asked.
- The claimants had not proposed to forgo the right to rest breaks before the employer decided to move them from Llanelli, so it could not have materially influenced the employer's decision to transfer them.