Was an employee fairly dismissed for exceeding working time limits under the Working Time Regulations by working two jobs for the same company?
Yes, held an Employment Tribunal in the case of Ogumodede v Churchill Contract Services, which found that an employee who held two jobs with the same employer was fairly dismissed from one of the jobs, after the employer learned that she was working combined hours in excess of limits under the Working Time Regulations 1998.
Background
The Claimant, Ms Ogumodede, transferred to Churchill Contract Services (the Respondent) under a TUPE transfer from her former employer on 5 March 2018. The Respondent currently employs the Claimant to work as a cleaner at Deutsche Bank’s offices for 40 hours per week (8am-5pm Monday to Friday).
The Claimant was also contracted by a third-party contractor to carry out cleaning at Houses of Parliament for 37.5 hours per week (10pm-6am Monday to Friday). On 1 May 2024 the Respondent took over a contract from that contractor to provide cleaning services to the Houses of Parliament. The Claimant’s contract for cleaning the Houses of Parliament therefore also transferred to the Respondent.
The Respondent did not know that the Claimant had been carrying out work at the Houses of Parliament before it took over that contract. At that stage, the two contracts for two different roles came to the Respondent’s attention. The Respondent was concerned at the Claimant’s hours which amounted to 17 hours in a 24-hour period with a short 2 hours break between roles in the morning and 5 hours in the evening.
The Respondent suspended the Claimant without pay from 25 July 2024 until it confirmed termination of her Houses of Parliament contract on 28 October 2024.
The Claimant brought claims of:
- Unfair dismissal
- Redundancy pay
- Unlawful deduction from wages – related to unpaid suspension
The Law
Under the Working Time regulations 1998 (WTR) working time is limited to a 48-hour average per week, usually assessed over a 17-week period, unless an Opt-Out Agreement is in place.
Additionally, a worker is entitled to:
- A daily rest period of not less than 11 consecutive hours in each 24-hour period during which they work for their employer.
- A weekly rest period of not less than 24 hours' uninterrupted rest in each seven-day period during which they work for their employer or, at the employer's choice, either:
- Two uninterrupted rest periods of not less than 24 hours in each 14-day period; or
- One uninterrupted rest period of not less than 48 hours in each 14-day period.
- An eight-hour average limit on a night worker's normal hours of work per 24 hours.
- An eight-hour actual limit for each 24-hour period in the case of work undertaken by a night worker (not necessarily during night-time) involving special hazards or heavy physical or mental strain.
The Claimant’s cleaning roles totalled 77.5 hours a week: a 40-hour week in a day shift and a 37.5-hour week in a night shift. These hours breached regulation 6(1) of the Working Time Regulations 1998, which limits night workers to working an average of eight hours in 24 hours. Regulation 6(2) requires employers to take all reasonable steps to ensure compliance in keeping with the need to protect the health and safety of workers.
Decision
The Employment Tribunal held that the Claimant was prevented by the principles of common law and statutory illegality from enforcing the contract. The performance of the contract was in breach of regulation 6(1) of the WTR and contrary to public policy. There was no provision for the parties to opt out from regulation 6(1) and, if the Respondent did not meet its obligations under regulation 6(2), offences might be committed.
It found the Claimant had deliberately concealed the fact that her working hours were in breach of the Working Time Regulations and concluded that her knowing participation in illegally performing the contract, combined with the clear health, safety and public interest considerations behind the restrictions (particularly for night workers), justified rejecting her claims.
Even if she had not been prevented from pursuing her unfair dismissal claim due to the illegality of performing the contracts, the reason for her dismissal was potentially fair for contravening a statutory restriction under section 98(2)(d) of the Employment Rights Act 1996 (namely that she could not continue to work in the position which she held without contravention - either by her or by the Respondent - of a duty or restriction imposed by or under an enactment, specifically to adhere to the working time limitations).
The Respondent had also followed a fair procedure, retaining the Claimant in the employment most favourable to her and offering her reduced hours which complied with the WTR in the other role, in an attempt to avoid dismissal.
The Employment Tribunal therefore held that the Claimant was fairly dismissed and also rejected her unlawful deductions from wages and breach of contract claims in respect of her unpaid suspension and summary dismissal.
Comment
In order to show compliance with WTR limits, employers must keep records that are "adequate" to show whether, in respect of each worker, the limits are being complied with, and these records must be retained for two years after employment ends.
This case is a timely reminder to employers to be aware of their obligations, ensure they can show compliance, and take prompt action on discovering non-compliance.
In sectors where employees regularly take on other work, it’s also sensible to require them to inform the employer immediately if they have taken or are proposing to take on another role, both to ensure compliance with the WTR and with health and safety obligations.
Published 28 November 2025
