Does a worker have to request a statutory rest break?

Grange v Abellio London Ltd

The EAT confirms that it is the employer’s obligation to ensure that workers take statutory rest breaks - it is not necessary for the worker to ask for a break before the Working Time Regulations are breached.

This claim concerned regulation 12 of Working Time Regulations (WTR) which provides that where a worker’s daily working time is more than six hours, they should be entitled to an uninterrupted rest break of not less than 20 minutes.

Mr Grange was originally contracted to work 8.5 hours a day, with a 30-minute, unpaid rest period. However, this was amended in 2012 in recognition of the fact that it was difficult for employees to take that role. The employer explained that the idea behind the change was that employees should work eight hours without a break, but they could then finish early.

In November 2014 C issued a tribunal claim stating that for over two years he had had to work without a meal break and that this had a detrimental impact on his health. The claim was presented under WTR, reg. 30 which specifies that a worker may present their claim to a tribunal where their employer ‘has refused to permit’ them to exercise their right to a break.

The tribunal dismissed the claim. In doing so it followed a previous EAT decision (Miles v Linkage Community Trust Ltd [2008] IRLR 602) which had determined that the employer’s refusal must be a deliberate and distinct act in a response to a worker’s attempt to exercise their right. In short, to make his claim that he had been refused a rest break, Mr Grange had to first ask to be allowed to take a rest and for that request to be denied.

Mr Grange appealed on the basis that he believed that this approach and the interpretation of the WTR was wrong. He argued that this failed to give effect to the Working Time Directive (WTD), the European legislation from which the WTR derive.

The EAT agreed. It commented that the requirement of an explicit request for a rest break (much like the requirement to give notice to take holiday which does exist at WTR, reg. 15) creates an extra condition on the right which simply does not feature in either the regulations or directive. Instead, the obligation must be on an employer to positively and proactively enable employees and worker to take adequate rest breaks, even if the workers themselves cannot be forced to do so. This, the EAT concluded, enabled a ‘real world protection’ of the rights set out in the WTR.

Link to judgment: http://www.bailii.org/uk/cases/UKEAT/2016/0130_16_1611.html

Comment

This is an interesting case in that it has certain echoes of the holiday pay litigation, which also concerns rights derived from the WTR. Like the right to take holiday, the underlying purpose of securing rest breaks for workers is one of health and safety. The conclusions of the EAT are a good reminder to employers that they are expected proactively to protect these rights of their workers and employees. There may be many occasions where it is necessary for employees to work through a lunch break, but there are clearly dangers for both parties if this becomes normal practice within a workplace, and employers should make every effort to promote and facilitate the taking of breaks and adequate rest.