Employment Law Cases

Asserting breach of a statutory right: when does the claim crystalise?

Simoes v De Sede UK Ltd

An employee can bring a claim for automatic unfair dismissal if they are instructed to infringe their statutory rights, even if the infringement has not actually occurred.


Ms Simoes was asked by her employer to work for a period of 14 consecutive days, i.e. without any weekly rest period, to cover her manager’s holiday. She initially agreed but a day before the period was meant to start, she objected on the basis that it would breach her rights under the Working Time Regulations (WTR). Her employer refused to provide any temporary cover and despite her complaints, Ms Simoes worked the hours as instructed. Two days after her manager returned from holiday, Miss Simoes was given notice of termination because of her earlier complaint. She claimed in tribunal that her employer had breached s. 104 of the Employment Rights Act because she’d been dismissed for claiming a breach of her statutory rights. The tribunal disagreed, holding that, in line with Spaceman v ISS Mediclean Ltd, at the time of her complaint the alleged breach hadn’t actually occurred. Ms Simoes appealed.

EAT decision

The appeal was allowed.

The employer’s instruction to work the 14-day period (and the subsequent dismissal because Ms Simoes complained) was enough to found a claim under s. 104; there was no need to wait for the actual missing of the weekly rest period to occur before the claim would ‘crystallise’. It was the instruction which was alleged to have infringed her rights, and that was sufficient.

This was not an allegation of a future or intended breach and the facts were very different from that in Spaceman. In that case, the claimant asserted during his disciplinary hearing that he was going to be unfairly dismissed and it had already been decided to dismiss him. When he then was dismissed, he tried to argue that his dismissal had been caused by his comment during the hearing – i.e. an anticipated, future breach and not one that had already occurred.

In this case, Ms Simoes had been instructed to work. It wasn’t a case of ‘If you ask me to do that then it will be a breach of my rights’ as the instruction had already been given: she had been asked and the instruction was repeated after her concerns had been raised.

Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2021/0153_20_2704.html


Appeals on the scope of s. 104 are uncommon and this decision confirms the settled case law that in a complaint of automatically dismissal for asserting a statutory right there must be an infringement of a statutory right, not merely an anticipation or threat of future infringement.