The sort of heading to a case report which leads even the most tired and jaundiced of employment lawyers to prop open an eyelid long enough to take a look. The case in question concerned two care- home employees. Despite what might strictly be thought to be unnecessary instructions to remain awake during their shift, both were found asleep on duty and dismissed. Both lacked the service to bring an ordinary unfair dismissal claim. With top marks for ingenuity and none at all for self-respect, they argued instead that they had been denied the rest breaks required by the Working Time Regulations, and that in dropping off at work they were merely refusing to forego that statutory entitlement. A dismissal for refusing to forego a right conferred by the Working Time Regulations would be automatically unfair, without the need for any minimum period of service.
So it was that somewhat to its surprise, the Employment Tribunal and later the EAT found themselves considering whether being found face-down on your desk at work amounted to a “refusal” to forego a rest break, or just simple misconduct. In an exercise of valour and futility unmatched since the Light Brigade, the employees argued that by sleeping at work they were by definition refusing to stay awake and hence were at least impliedly refusing to forego their rest breaks.
The Tribunals were unimpressed. The EAT decided that a “refusal” for these purposes has to consist of more than not doing something – it has to be expressly communicated to the employer. Otherwise the employer cannot know whether the employees are engaged in some form of deliberate protest:sleep – or do not care about the WTR rest breaks and have merely stayed up too late the night before.
Which leads us to a simple lesson for all those who feel their head grow heavy, their sight grow dim and an overwhelming need to stop for the night. First, if you still have the energy, write out a memo insisting on your right to a rest break. Second, place the memo in a prominent position on your desk. Third, place your forehead on the memo, shut your eyes and wait for your own 15 minutes of embarrassment in the law report. Perhaps a coffee would have been a better bet, all things considered.