Failure to actively promote employees taking breaks is a breach of Working Time Regulations

25 November 2016

The case of Grange v Abellio London Ltd [2016] UKEAT/0130/16/DA involved an employee who brought a claim under the Working Time Regulations 1998 (WTR), arguing that he had been denied his legal entitlement to rest breaks.

The key question in this case surrounded the definition of ‘refused’ within the WTR, and whether an employee could only bring a claim if he had actively requested to exercise his right to take a break, and that request had been refused by the employer.

The employee had been employed as a Relief Roadside Controller which involved him having to regulate the frequency of bus services to road traffic conditions. Initially, his working day lasted eight and a half hours and he was entitled to a half an hour break per day. Given the responsive nature of his role it was often difficult for the employee to take his break. Subsequently, the employer changed his working day to 8 hours due to the difficulty of the employee being able to fit in that break, the idea that he would finish half an hour earlier but would work without a break.

Workers are entitled to a rest break of 20 minutes after six hours of work under regulation 12(1) of the WTR. Regulation 30 of the WTR sets out the remedies available to a worker where his WTR entitlement have been breached. This regulation states that a claim may be brought where the employer ‘has refused to permit him to exercise any [WTR] right he has’.

In the first instance the Employment Tribunal held that there had to be an actual refusal by the employer of a request by the worker to exercise his right to a rest break. The Employment Tribunal held that even though the employer had expected and potentially instructed the employee not to take lunch breaks, it had never actually refused a specific request by the employee to exercise his entitlement, and therefore his claim was unsuccessful.

On appeal to the Employment Appeal Tribunal, it was held that although workers cannot be forced to take rest breaks, they are to be positively enabled to do so by the employer. There was a clear duty upon the employer to afford the employee an entitlement to a rest break. 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 case went back to the tribunal to determine whether on the facts the employer had breached its duty to positively enable the employee to take rest breaks.

This case is particularly interesting given the culture which exists within many employers where employees feel pressured to continue working and not take their rest breaks in order to meet client demand. Employees are clearly entitled to choose not to take their rest breaks, but identifying when this is due to the free choice of the employee rather than a response to the employer’s expectations will naturally be unclear.

As such, employers would be well advised to take steps to ensure that employees are, at the very least, aware of their rights under the WTR and that the employer respects their minimum entitlements, notwithstanding working demands. Employment handbooks, contracts and training within employer organisations should make these points clear so as to mitigate against the risk of any claims, which could be significant if a number of employees complain that a culture of not positively enabling employees to take rest breaks is prevalent throughout a business.

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