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Is a failure to allow for rest breaks under the Working Time Regulations to be treated as a refusal to allow a rest break?

30th November 2016

One of the many rights for workers established under the Working Time Regulations 1998 is the right to take a rest break at work. Under Regulation 12(1) of the regulations, workers have the right to take a rest break of 20 minutes where the working day is longer than six hours (nb For young workers the rest break entitlement arises after a shorter period).

A recent decision of the Employment Appeals Tribunal (the EAT) has considered the situation where a rest break could not be taken and was not actually requested by the worker in question. The EAT had to consider if the right to the rest break had been breached by the employer even if the break had not been requested by the worker.The case, Grange v Abellio London Ltd involved a worker that worked as a "relief roadside controller". The job involved regulating and monitoring bus services. The working day originally lasted for 8 and 1/2 hours, which was meant to include a 30 minutes break. In reality it was often impossible to take that break due to the workload of the job. From July 2012 the company decided to reduce the working day, with the consequence that the workers would work for 8 hours without a break, and finish 30 minutes earlier than before. 

In July 2014 the worker submitted a grievance, complaining that for two and a half years he had been forced to work without a break. The grievance was rejected by the company, so he brought a claim to the Employment Tribunal, claiming that the company had refused to permit him to take a rest break under the Working Time Regulations.The Employment Tribunal referred to an earlier case in reaching a decision to reject the claim. In that earlier case (Miles v Linkage Community Trust) the EAT had ruled that there would be not breach of the right unless there had firstly been a request to take the break, and secondly a refusal by the employer to allow the break. In this instance there had been no actual request to take a break between the change of hours in July 2012 and the date that the grievance was submitted in 2014. On the basis that there had been no refusal by the company to allow the break the Employment Tribunal took the view it was bound by the decision n the earlier case of Miles, and so rejected the current claim.

At the EAT it was noted that there were conflicting EAT decisions on the issue- although they addressed different parts of the Working Time Regulations. It noted that in another case, that of Scottish Ambulance Service v Truslove the EAT had concluded that the daily rest periods (under Regulation 10 of the Working Time Regulations) did not have to be formally requested by the worker and a refusal to allow the daily rest break did not depend on there first being a request for that daily break.

Noting the conflicting interpretations, the EAT in the current case examined the purpose and aims of the Working Time Directive (which is given effect in the UK by the Working Time Regulations). It noted that the rest break provisions arose as a health and safety measure. It also noted that in the case of Commission of the European Communities v United Kingdom that the entitlement to rest breaks is intended to be actively provided by employers to their workers. In view of that, the EAT in this case ruled that the right to the rest break was not dependent on an initial request from the worker. So the right to the break would, in reality, be refused by the employer if it failed to put in place working arrangements that enabled the break to be taken. The EAT observed that the right to take a rest break as provided under the Working Time Regulations is not expressed as a right to request to take a rest break, but is the right to have one. The claim was therefore upheld by the EAT. 

It is important to note that the EAT observed that an employer cannot force an individual worker to take a break, but the duty is on the employer to afford to the worker the entitlement to take the break. Employers should also recall that the right is not met by providing a "break" at the beginning of the shift, or at the end of it (as could have been argued in this case with the change in hours from July 2012).

This case highlights the fact that employers should have workable arrangements to enable their workers to take the rest break during their working hours each day. There are some limited exceptions, such as in a case of emergency, but employers would be unlikely to convince an Employment Tribunal that every day would provide a sufficiently unusual high demand of work or emergency situation adequate to meet the terms of the exceptions;and even in those cases the worker is entitled to compensatory rest as soon as is possible. 

At Hallett Employment Law Services Ltd we can provide advice and guidance on how the obligations and rights to rest breaks can be addressed, and assist in drafting appropriate procedures to cover this issue.       

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