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Ajayi (1) Ogeleyinbo (2) v Aitch Care Homes (London) Ltd - Refusal to accept WTR contravention must be explicit [2012] EAT

A ‘refusal’ or ‘proposed refusal’ by an employee to accept a contravention (or proposed contravention) of the Working Time Regulations 1998 by his employer must be communicated explicitly to that employer.  

Mrs Ajayi and Mr Ogeleyinbo were "waking night support workers" in a residential home which cared for vulnerable adults. They were required to be awake during their shift due to the nature of problems that could occur with the residents. During a spot check both were found to be asleep. Both were dismissed as a result. 

Both claimants complained to an employment tribunal that their dismissals were automatically unfair, because they were dismissed for asserting their rights under Employment Rights Act 1996 sec 101A, namely that they had

  • (a) refused (or proposed to refuse) to comply with a requirement which the employer imposed (or proposed to impose) in contravention of the Working Time Regulations 1998 (WTR), and
  • (b) refused, or proposed to refuse, to forego a right conferred by those Regulations […].”

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