An employment tribunal has confirmed that an employee who held two roles with the same employer was fairly dismissed after it was discovered that her combined working hours breached the Working Time Regulations 1998 (WTR).

Background

The employee had been working two cleaning jobs for the same employer (one during the day and one at night at different locations), following a TUPE transfer. Her total working hours amounted to 77.5 hours per week, significantly exceeding the legal limit for night workers under Regulation 6(1) of the WTR, which restricts night work to an average of eight hours in any 24-hour period.

Upon discovering the breach, the employer suspended and subsequently dismissed her from the lowest paying role. She brought claims for unlawful deductions from wages and breach of contract, arguing that her suspension and dismissal were unjustified.

Tribunal decision

The tribunal dismissed all claims, finding that:

• The employee had deliberately concealed her working hours.
• Her contract was performed illegally, breaching WTR and contrary to public policy.
• There was no opt-out available for the night work limit, and failure to comply could result in offences under Regulations 29 and 29B of the WTR.
• She was barred by statutory and common law illegality from enforcing her contract.

The tribunal relied on principles from Okedina -v- Chikale [2019] EWCA Civ 1393 and Enfield Technical Services Ltd -v- Payne [2008] EWCA Civ 393, concluding that her knowing...

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