Night work, rest periods and multiple employers

In Ogumodede v Churchill Contract Services, a tribunal had to decide if an employer had lawfully dismissed an employee it had aquired via two separate TUPE transfers after it discovered that she was working 17 hours a day under two separate contracts.

Facts

In 2004, Ms Ogumodede started working for company A which had a contract to clean a bank. Her working hours were from 8am to 5pm, Monday to Friday. Four years later she started a second cleaning job, working for a different company (company B). Her working hours were from 10pm to 6am, Monday to Friday. 

Her combined working hours were 77.5 per week. This meant that her rest periods were extremely limited. During the week, she only had five hours of rest from 5pm to 9pm and two hours rest between 6am and 8am. When you consider her commute time (both jobs were in London), her actual rest must have been minimal.

Nonetheless, she appears to have been reliable and good at her job.

In 2018 Churchill obtained company A's contract and Ms Ogumodede's employment transferred to it under TUPE. She didn't reveal that she had an additional full-time contract. Then in May 2024, Churchill obtained company B's contract and Ms Ogumodede's contract transferred to it. 

At that point Churchill discovered that she was working 17 hour days across two different jobs and it met with her to discuss this. Ms Ogumodede claimed she was “very well” and said that she properly rested at the weekend. A manager explained to her that she could not work this number of hours under the Working Time Regulations and it suspended her from her night job. 

During a subsequent meeting, Churchill suggested that she retain the bank work (as she earned more money under this contract), and could work for three hours in the second job at the end of her shift until 9pm. Her working hours would, therefore have been, 8am to 5pm and then from 6pm to 9pm which would have given her 11 hours daily rest. She was accompanied by a union rep. He pushed for her to be made redundant from the second job (as there was a redundancy process underway) and she turned down the offer. 

Churchill dismissed her, without notice from the second job. She alleged she had been unfairly dismissed from that job, should have received paid notice, and been paid during her suspension. She also said she was entitled to a redundancy following the termination of her night job.  

The law

The WTRs are a health and safety initiative implemented to protect workers from working excessive hours. There are limits on how many hours workers can work each week (on average), and how much daily and weekly rest breaks they should take. 

There are additional rules that apply to night workers: principally they should not work, on average, more than eight hours in each 24 hours. If they are handling special hazards, or are under ‘heavy physical or mental strain’ the eight hour is a maximum: it can't be averaged. For adult workers, night work is defined as working at least seven hours between 11pm and 6am. 

Workers can opt out of the 48 hour weekly working limit, but they can't opt out of the limits on night work.

Tribunal decision

Churchill argued that all of her claims should fail because the second contract (which it terminated) was illegal. It said that it could not employ Ms Ogumodede to work on both contracts without breaching the WTR and her dismissal was for a fair reason - namely illegality or SOSR.

The tribunal agreed. It made the following findings of fact: 

• Ms Ogumodede had deliberately concealed the fact that she had another full-time job when she started the second job - because she knew she should not be working that number of hours
• Churchill had taken a reasonable approach to which contract to terminate.
• It was unjust for Churchill to pay her for work she couldn't do because of the limitations imposed by the WTR
• She did not accept the offer of reducing her hours in the second contract; and
• She had not been made redundant. 

Our view

This decision is undoubtedly correct on the facts. It is unlawful for an employer to engage someone to work 17 hours a day, five days a week on a permanent basis. That's for a good reason. The health and safety rationale at the heart of the WTRs addresses both the safety of an individual worker and wider society. 

However, the tribunal made some interesting comments about the 48 hour maximum working week and restrictions on night work.

Regulation 6 (which applies to night work) says this: 

(1) A night worker’s normal hours of work in any reference period which is applicable in his case shall not exceed an average of eight hours for each 24 hours.

(2) An employer shall take all reasonable steps, in keeping with the need to protect the health and safety or workers, to ensure that the limit specified in paragraph (1) is complied with in the case of each night worker employed by him.

The Judge said that these requirements apply to situations where the worker has more than one employer. That is certainly what the government suggest in its guidance. I don't think that's correct. The guidance is just that - guidance - it doesn't have any statutory force and employers don't have to follow it.

There isn't an express provision in the WTR requiring employers to consider work done for another employer when applying the limits under Regulation 6 (or in respect of the 48 hour weekly maximum). The EU did consider whether to include an express provision applying the 48 hour week to the aggregate of any worker's working time - including where they worked for another employer at the same time. But no agreement was reached and this was never included.

The limits on the working week apply only as between a worker and an employer, and there is no duty on the employer to take into account the existence of a second job with another employer when calculating a worker's average working time. The only exception applies to young workers. Regulation 5A requires employers to aggregate the total number of hours worked by each young worker.  

Nonetheless, it is sensible for employers to take an interest in whether their staff are working two or more full-time jobs and necessary if they are using dangerous machinary. It's part of taking reasonable steps to protect the health and safety of workers. 

Our newsletters

We publish monthly employment and education newsletters. If you'd like to be added to the mailing list, please let me know.