Illegality and the Working Time Regulations

A recent Tribunal decision considered the case of an employee dismissed for working in breach of Working Time Regulations.

With the current cost of living crisis, workers across the UK are working as many hours as possible to maximise their earnings, particularly where their pay directly relates to the hours worked. There are of course key requirements in the Working Time Regulations (WTRs) impacting on how many hours workers can work, including a maximum working week of 48 hours and minimum rest breaks.

The 48-hour working week can be opted out of by workers, but the mandated rest breaks cannot. The WTRs apply regardless of whether a worker has one or multiple employers and places obligations on employers to ensure the rest rules are not exceeded. However, employers invariably rely on workers reporting their working hours accurately to comply with their obligations under the WTRs.

If a worker fails to report their working hours accurately, employers may be in the position of needing to juggle their obligations under the WTRs, the terms of the contract and potential claims such as unfair dismissal if they seek to change contracted terms by restricting working hours.

In these circumstances a key issue for employers to understand is whether illegality renders a contract unenforceable, as this will help an employer understand how to resolve the situation. Illegality in employment contracts has essentially two forms: statutory illegality (where a contract or term under it is actively prohibited in law), or common law illegality (where the law recognises that there may be issues with the formation, purpose or performance of a contract involving illegal conduct or which is contrary to public policy that means a Court can refuse to enforce the contract).

A recent case highlights the key role illegality can play where a worker has failed to report all their working hours to an employer.

Case: Ogumodede v Churchill Contract Services UKET (July 2025)

In April 2005 Ms O entered a contract to work as a cleaner at premises in London between 8am and 5pm Monday to Friday. Churchill Contract Services (CCS) ultimately held this contract and employed Ms O. In November 2008, Ms O entered another contract with a separate company to work as a cleaner at the Houses of Parliament between 10pm and 6am, also Monday to Friday. When Ms O took the second job, she signed a declaration saying she did not have another job, but worked both contracts simultaneously.  

In May 2024 CCS took over the cleaning contract for the Houses of Parliament, at which point Ms O’s contract for that role transferred to CCS, who discovered the full extent of her working hours. CCS identified three key breaches of the WTRs:

• Night-work limit: normal hours must not exceed an average of eight hours in any 24-hour period (Reg 6(1)). Further, employers must take all reasonable steps to secure compliance (Reg 6(2)). Breach of Reg 6(2) is enforced via the Health and Safety Executive with possible criminal sanctions on employers who fail to comply (Regs 28–29);

• Daily rest: at least 11 consecutive hours’ rest per 24-hour period (Reg 10); and

• Weekly rest: 24 hours per 7 days, or 48 hours per 14 days (Reg 11).

Citing concerns for Ms O’s health, and in view of their obligation to uphold the WTRs, CCS suspended Ms O from her duties at the Houses of Parliament without pay.

At around this time CCS conducted a redundancy process with staff, in which Ms O participated. Voluntary redundancy was offered to staff, but Ms O did not apply for it and she was ultimately not made redundant. 

CCS addressed Ms O’s suspension, noting it could not allow her to work the night shift whilst performing her day shift at the same time. CCS offered her a contract to work 15 hours a week, 6pm-9pm Monday to Friday in the Houses of Parliament in addition to her existing role, but she refused.

Ms O raised a grievance arguing that CCS could not suspend her without pay from her duties at the Houses of Parliament. She argued that the new contract offered to her was not acceptable, caused a significant loss of income, and that she should have been made redundant like several of her colleagues working at Parliament had been. The grievance was ultimately not upheld, CCS terminated Ms O’s contract at Parliament and refused to backdate her pay regarding her suspension from cleaning work at Parliament. 

Ms O brought claims for unfair dismissal, breach of contract for non-payment of notice, for non-payment of a redundancy payment and for unlawful deductions from wages.

The Tribunal dismissed Ms O’s claims. A key factor in the decision was the role of common law illegality. In this case, the Tribunal found that Ms O’s conduct in failing to declare her existing job when she became a cleaner at Parliament led to a breach of the WTRs in respect of her contract to work as a cleaner at Parliament. This meant the terms of this contract could not be enforced. For that reason CCS did not owe her back pay or notice pay when it terminated that agreement, nor had she been unfairly dismissed.

The grounds for termination of Ms O’s cleaner contract at the Houses of Parliament were not for redundancy, so she was not entitled to a redundancy payment. 

Conclusion

This case is a good example of the key role establishing illegality can have on the determination of claims resulting from workers failing to report all their working hours.

However, employers should bear in mind that each case is different and should be dealt with based on the specific circumstances. In this case, CCS made several reasonable decisions based on clear evidence that ultimately helped to successfully defend the case.

Employers may see an increase in this kind of situation as the cost of living in the UK continues to rise ahead of pay increases and the broader economic situation continues to look troubled.

If you would like to discuss any aspect of this article further, please contact our Employment team on 0113 244 6100. 

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The information in this article is necessarily of a general nature. The law stated is correct at the date (stated above) this article was first posted to our website.

Specific advice should be sought for specific situations. If you have any queries or need any legal advice please feel free to contact Wrigleys Solicitors.