In Ogumodede v Churchill Contract Services [2025] 9 WLUK 482, the Employment Tribunal held that an employee was fairly dismissed after her employer discovered that she had been working in two separate cleaning roles for the same company following a TUPE transfer, covering both day and night shifts at different locations. The tribunal also dismissed her claims for unlawful deductions from wages and breach of contract in respect of her unpaid suspension and summary dismissal.
The employee’s two roles amounted to 77.5 hours a week, consisting of a 40-hour day shift and a 37.5-hour night shift. These hours breached regulation 6(1) of the Working Time Regulations 1998 (SI 1998/1833) (WTR), which limits night workers to working an average of eight hours in each 24-hour period. Under regulation 6(2), employers are required to take all reasonable steps to ensure compliance with this limit.
The tribunal found that the employee was prevented by the principles of common law and statutory illegality from enforcing her contract. The performance of the contract was in breach of regulation 6(1) and contrary to public policy. There was no opt out to regulation 6(1), and if the employer had failed to meet its obligations under regulation 6(2), offences might have been committed under regulations 29 and 29B. The employee had deliberately concealed the fact that her working hours were in breach of the WTR, and her knowing participation in this illegal performance was significant.
Applying the principles in Okedina v Chikale [2019] EWCA Civ 1393 and Enfield Technical Services Ltd v Payne; Grace v BF Components Ltd [2008] EWCA Civ 393, the tribunal concluded that the combination of the employee’s knowing involvement in the illegality and the strong health, safety and public interest considerations underlying the WTR justified denying her contractual and wages claims.
Had the employee not been prevented by illegality from pursuing her unfair dismissal claim, the reason for her dismissal would have been potentially fair for contravening a statutory restriction under section 98(2)(d) of the Employment Rights Act 1996. The tribunal found that the employer had also followed a fair procedure, retaining the employee in the role most favourable to her and offering her reduced hours which complied with the WTR in the other position in an effort to avoid dismissal. This case highlights the significance of ensuring compliance with the Working Time Regulations, particularly in relation to night work, and the risks both to employees and employers where working arrangements breach statutory limits.
Ms_M_Ogumodede_v_Churchill_Contract_Services_-_2225883-2024.pdf
