Working time consideration for employers following Ms M Ogumodede v Churchill Contract Services

The recent case of Ogumodede v Churchill Contract Services highlights key lessons on Working Time Compliance for employers.

Ms Ogumodede worked 17 hours days every day for 16 years. Ms Ogumodede had two secret full time cleaning jobs, one at Duetsche Bank (8 am – 5 pm) and another at the Houses of Parliament (10pm – 6am). This schedule amounted to 77.5 hours of work per week, leaving her with very little rest between shifts. Ultimately, this working pattern was a breach of the Working Time Regulations 1998, which requires 11 hours’ rest period between working days.

When Churchill Contract Services took over the Houses of Parliament cleaning contract via a TUPE transfer, the issue came to light. Ms Ogumodede had never disclosed her second job. Once the discovery was made, she was suspended by Churchill without pay and Churchill explored alternative roles, shifts and voluntary redundancy. Ms Ogumodede declined all proposals. Churchill therefore decided to terminate the night shift contract, allowing her to continue in the daytime role, which attracted higher pay.

Shortly after, Ms Ogumodede brought claims for unfair dismissal, breach of contract and unauthorised wage deductions and redundancy pay. The Employment Tribunal dismissed all claims. It held that the dismissal was fair, and the contract was unenforceable due to common law illegality as the Working Time Regulations were breached. In addition to this, it held that Churchill acted reasonably by attempting to resolve the issue before the dismissal.

What does this mean for employers?

1. Working Time Regulations Compliance is Necessary

Breaches of the Working Time Regulations can render contracts unenforceable and expose employers to legal risks. This means that 11 hour rest periods between shifts and a maximum average working week of 48 hours (unless opted out) must be adhered to, and employers must be mindful of this.

2. Monitoring Secondary Employment

This case confirmed employers have a duty to monitor working time and this factors in hours worked in other employment. This can challenge employers as they are reliant on the employee providing true and accurate information. To mitigate risk, it is advisable to include a clause in the Contract of Employment requiring employees to disclose secondary employment and regularly remind staff of this obligation.

3. Following a Fair Process

Churchill’s proactive approach, providing the employee with alternative roles, hours and voluntary redundancy prior to terminating the night shift, supported the defending of the claim. Employers must document they have taken all reasonable steps to resolve the issue before termination to ensure a fair process.

This case highlights that Employers must prioritise working time compliance and transparency. Clear policies, contractual clauses and monitoring are essential in order to avoid costly disputes and a breach of the Working Time Regulations.

If you have queries or questions in relation to your responsibilities in accordance with the Working Time Regulations, please do not hesitate to contact a member of the AfterAthena team (part of the Napthens Group) who are able to offer 30 minutes of free advice to QCS members.