Tribunal Rules Staff are Entitled to Rest Breaks Even if They are Not Requested

The Employment Appeal Tribunal (EAT) has ruled in a case which considered whether an employer had ‘refused’ to permit rest breaks under the Working Time Regulations 1998 (WTR) when it had failed to provide breaks but the employee had not requested them.

The WTR provide a right for workers to take a 20-minute rest break where the working day is longer than six hours. The regulations enable a worker to bring a claim if an employer has refused to allow the exercise of the right to such a rest break.

The EAT’s decision in Grange v Abellio London closes a loophole in working time regulations.

Length of working day changed to allow earlier finish

Grange was employed by Abellio London Ltd in a role which required him to regulate the frequency of bus services to road traffic conditions. At first, his working day was eight and a half hours in duration and he was entitled to a half an hour break per day. However, the responsive nature of his work made the taking of a break sometimes difficult. In recognition of this, the employer changed the length of his working day to eight hours owing to the difficulty of the employee being able to fit in a break; the idea was that he would finish half an hour earlier having worked without a break.

Grange subsequently lodged a grievance complaining that he had been forced to work without a break for two and a half years and that it had been to the detriment of his health. The grievance was heard and rejected by Abellio.

A claim was submitted by Grange with the employment tribunal (ET); it was dismissed. The ET said that his right to a break had not been infringed because there had been no request by him to have such a break and therefore there had not been a ‘refusal’ either.

Employer must afford an entitlement to a break

In an appeal to the EAT, Grange said his employer’s failure to allow him to exercise his right to a rest break did amount to a ‘refusal.’ The EAT held that although workers cannot be forced to take rest breaks, they are to be positively enabled to do so by the employer. It said there was a clear duty upon the employer to afford the employee an entitlement to a rest break.

The EAT held that this was a common sense construction of Regulation 30 of the WTR read together with regulation 12(1) WTR, and ensured that the purpose of the European Working Time Directive (under which the WTR had been implemented) was met.

The EAT held the view that an employer is under an obligation to recognise a worker’s entitlement to take a rest break, and that this entitlement will be refused by an employer if it puts into place working arrangements that fail to allow workers to take a 20-minute rest break. There was no need for a worker to request the rest break.

Employers must ensure they meet obligations

Many employees unilaterally take a decision to work through rest breaks. Employers must be aware that they will not be able to use that as a defence should an employee later seek to enforce their rights. Employers are recommended to take steps to ensure that employees are able to take rest breaks so that it can be demonstrated they have met their obligations under the WTR. This is of particular significance in situations where there may be health and safety implications if rest breaks are not taken or if the absence of such breaks might be detrimental to employees’ health

Employers should examine their working practices and ensure that arrangements are put in place to allow workers to benefit from their rights and entitlements. Although employees cannot be forced to take rest breaks, they should be positively enabled to do so.

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