Rest breaks – don’t ask, still get!

In a recent case of Grange v Abellio London Limited, the Employment Appeal Tribunal (EAT) was asked to make a ruling on whether an employer had refused an employee’s right to a rest break under the Working Time Regulations – despite the fact that the employee has never made a request for a break.

What is this case all about?

The employee worked for eight and a half hours per day, which included an unpaid half hour lunch break. Given the nature of his role, it was difficult to take this break. He was later told that his working day had been changed to an eight hour day without a break, but he could leave work half an hour early.

The employee raised a grievance, stating that he has been forced to work without a break for two and half years which was having a negative effect on his health. Before this grievance, he had never requested a break.

The employer rejected the grievance and the employee submitted a claim to an Employment Tribunal.

What does the law say about rest breaks?

Under the Working Time Regulations, workers are entitled to a minimum uninterrupted rest break of 20 minutes during any working day that exceeds 6 hours. The worker is entitled to spend this time away from their workstation.

If a worker is refused this right, he has the right to bring a claim to an Employment Tribunal.

What did the Employment Tribunals decide?

The Employment Tribunal dismissed a claim brought by the employee. The Tribunal followed the EAT ruling in Miles v Linkage Community Trust, which stated that the worker can’t claim that the right had been rejected unless they had explicitly asked to take a break. The employee appealed the decision.

Overturning the decision by an Employment Tribunal, the EAT followed the approach taken in Scottish Ambulance Service v Truslove. The EAT said while the employer cannot force their employees to take rest breaks, but they should take active steps to ensure that workers’ working arrangements enable the worker to take rest breaks during their shift. If the employer fails to put working arrangements in place that allows the employee to take breaks, the employee can make a complaint to an Employment Tribunal.

What can we take away from this case?

The case shows that employers need to pay attention to working time rules. It is a common reality that in many fast paced and pressured working environments, workers decide to work through their rest breaks and do not make a grievance about it.

However, this case shows that employer will not be able to rely on this as a defence if an employee later decides they do actually want to enforce their rights. Obviously, you cannot force an employee to take a break, but you can foster a working culture that encourages it.

If you require advice about rest breaks, please speak to your Employment Law Adviser.

Director of Legal Services

James Tamm

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