No Automatic Unfair Dismissal Where Employees Dismissed for Falling Asleep on the Job

Falling asleep on the job was not a sufficient indication of a refusal to forego a rest break and so the resulting dismissals were not automatically unfair. 

In Ajayi & Ogeleyinbo v Aitch Care Homes (London) Limited, the employer care home had a very clear policy that employees must be alert at all times in order to be able to respond to an emergency.  The two claimants were the only two employees on night duty when their manager arrived and found them asleep.  After spending about 15 to 20 minutes doing a check around the building and patients, the manager woke them up.  They were subsequently dismissed for gross misconduct, despite arguing that they were taking a rest break when they were asleep.

The claimants argued that their dismissals were automatically unfair.  When they were asleep they were exercising their right to take a rest break under the Working Time Regulations 1998 (WTR) and consequently they were dismissed because they had refused to forego that right.  That was an automatically unfair reason under s101A Employment Rights Act 1996.  The employment tribunal found that the employees had been dismissed solely because they were asleep on duty.  In any event, they had not “refused” to forego rights under the WTR because any such refusal had to be communicated to the employer.

The claimants appealed unsuccessfully to the EAT.  It held that for an employee to “refuse”, they would have to explicitly communicate that ‘refusal’ to their employer.  A refusal cannot be implied from an employee’s conduct.

The decision in this case is a sensible one.   Had a failure to comply with an instruction been found to amount to a refusal to forego rights, it would have created practical problems for employers.  How would an employer know that an employee was refusing to give up statutory rights rather than simply disobeying an instruction in any given situation?  How could an employer be held liable for automatic unfair dismissal for dismissing an employee because he refused to forego a statutory right, if there was no way the employer could know that that was what the employee was doing?

Doyle Clayton acted for the employer in this case.