Employment Law – Error in Law By Tribunal – Number of Hours Worked

The case of McLean v Rainbow Homeloans Ltd [2006], involved an employee who was employed as a mortgage advisor. He had commenced employment on 14 April 2004, and had had his employment terminated on 1 April 2005.The employee asserted that during the period of his employment, he had regularly worked for between 55 and 60 hours per week. He claimed that the employer had then asked him to work at the weekends, in addition to the hours that he had been working already. The employee refused that request, at which point on 23 March 2005, he received a letter from his employer which he interpreted as giving notice that his employment was to be terminated.The employee brought proceedings before the employment tribunal. The tribunal held that it had no jurisdiction to hear the employee’s claim. It cited the reason for this decision being that the employee had not claimed that he had been dismissed for attempting to assert a statutory right under the Working Time Regulations 1998 SI 1998/1833 (“the Regulations”). The tribunal said that in those circumstances, his claim for unfair dismissal could proceed no further on the basis that he had not accrued the requisite qualifying period of service under s.108(1) of the Employment Rights Act 1996 (“the Act”).The employee appealed to the Employment Appeals Tribunal (EAT). The employee submitted that the tribunal had erred in finding that it had no jurisdiction to hear his claim. He argued that:– It was wrong to prevent his claim from continuing on the ground that he had not alleged that he had been dismissed for attempting to assert a statutory right.- the tribunal had failed to have regard to the provisions of s.101(A) and s.108(3)(dd) of the Act. Those provisions dis-applied the statutory continuous service requirements in respect of an unfair dismissal claim where it had been alleged that an employee had been dismissed for refusing to adhere to an employer’s requirement that would have contravened the Regulations.- this applied to his case due to the fact that he had been asked to work many more hours than he should have been.The appeal was allowed. In this case, it was held that the tribunal had erred in law by directing itself that it had no jurisdiction to hear the claim on the ground that the employee had not alleged that his dismissal had been a consequence of his attempt to assert a statutory right. The EAT said that it was plain from the terms of the Act that the tribunal had jurisdiction to hear the employee’s claim on the basis that he had alleged that his dismissal had been a consequence of him having refused to accept the employer’s request to work hours in contravention of the Regulations.It was decided that the employee’s claim would be remitted to the tribunal for re-consideration.If you require further information please contact us at [email protected] or Visit http://www.rtcoopers.com/practice_employment.php¬© RT COOPERS, 2007. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.

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