Do employees have the right to a rest break even if they don’t ask for one?

In a recent case an employer’s failure to allow an employee rest breaks during the working day was considered by the Employment Appeal Tribunal. What is unusual about this case is that the employee had not actually requested to take his rest break during the working day, so wasn’t actually ever refused a break. However, it was not until he was signed off sick and raised a formal grievance that he made it clear he was unhappy about working for 8 hours without a break.

The Law

In accordance with the Working Time Regulations, (Regulation 12(1)) employees are required to have a 20 minutes uninterrupted break from work if their working hours are 6 hours or more.

Regulation 12 of the Working Time Regulations states:

(1) Where a worker’s daily working time is more than six hours, he is entitled to a rest break.
(2) The details of the rest break to which a worker is entitled under paragraph (1), including its duration and the terms on which it is granted, shall be in accordance with any provisions for the purposes of this regulation which are contained in a collective agreement or a workforce agreement.
(3) Subject to the provisions of any applicable collective agreement or workforce agreement, the rest break provided for in paragraph (1) is an uninterrupted period of not less than 20 minutes, and the worker is entitled to spend it away from his workstation if he has one.

Regulation 30 of the Working Time Regulations states:

(1) A worker may present a complaint to an employment tribunal that his employer –
(a) has refused to permit him to exercise any right he has under –
(i) regulation 10(1) or (2), 11(1), (2) or (3), 12(1) or (4), 13 or 13A;
(2) … an employment tribunal shall not consider a complaint under this regulation unless it is presented –
(a) before the end of the period of three months … beginning with the date on which it is alleged that the exercise of the right should have been permitted …
(3) Where an employment tribunal finds a complaint under paragraph (1)(a) well-founded, the tribunal –
(a) shall make a declaration to that effect, and
(b) may make an award of compensation to be paid by the employer to the worker.
(4) The amount of the compensation shall be such as the tribunal considers just and equitable in all the circumstances having regard to –
(a) the employer’s default in refusing to permit the worker to exercise his right, …

The Facts

Mr Grange was employed by Abellio London Limited (the ‘Employer’) as a Relief Roadside Controller, also known as an SQS. He started the role in June 2011 having previously been employed as a bus driver from September 2009.

In his role as an SQS Mr Grange was required to monitor the arrival and departure times of bus services, regulate the frequency of the service and adjust it to traffic conditions. Because of the nature of his role taking a break from work was often difficult, however he was required to work for 8 ½ hours per day with ½ hour being an unpaid lunch break.

Because of the difficulties in taking a break during the working day the Employer changed Mr Grange’s working day so that it was reduced to 8 hours with the last 30 minutes of the day being his ‘break’ time. Although clearly at the end of his 8 hours he would go home rather than take the break.

The change to working hours was communicated to all SQS staff at a meeting and then subsequently by email.

On the 14th July 2014 Mr Grange raised a grievance about the fact that he had been required to work for 8 hours without a meal break since 2012 and that this had negatively impacted his health.

Before the outcome of his grievance was communicated to him by the Employer, Mr Grange made a claim in the Employment Tribunal

The Employer’s defence in this case hinged on the fact that Mr Grange had not made any request for a rest break at any time between the change taking place in 2012 until 2014 when he raised his grievance.

The Employment Tribunal agreed with the Employer and decided that in fact Mr Grange’s claim could not succeed as he had not actually been refused a rest break, because he had not requested one.

Mr Grange appealed to the Employment Appeal Tribunal on the basis that there was no requirement for the Employer to expressly refuse a request for rest break in order for his claim to succeed.

The Decision

The Employment Appeal Tribunal decided that the Employment Tribunal had adopted the wrong approach to the decision and stated;

‘the employer has an obligation (“duty”) to afford the worker the entitlement to take a rest break. That entitlement will be “refused” by the employer if it puts into place working arrangements that fail to allow the taking of 20 minute rest breaks. If, however, the employer has taken active steps to ensure working arrangements that enable the worker to take the requisite rest break, it will have met the obligation upon it: workers cannot be forced to take the rest breaks but they are to be positively enabled to do so.’

The case was therefore returned to the Employment Tribunal to consider the particular issues of Mr Grange’s case based on this decision.

Points to Note

This case provides an interesting decision and assessment of an employer’s obligations in respect of rest breaks. What is clear is that employers are required to ensure that there is an opportunity for an employee to take a rest break during the working day whether they request the break or not and whether they take the break or not.

Action Points

1. If you have a practice of giving employee’s ‘rest breaks’ at the end of their shift, I would recommend that you change this to ensure that there is time in the working day to take the required rest break.

2. If an employee requests, as a one off or occasional arrangement, to work through the day in order to leave early, thus ‘taking’ their rest break at the end of the day this would be permitted.

3. If an employee needs to leave early regularly, thus taking their rest break at the end of a shift I recommend that you reach an agreement to permanently change their hours to ensure that they take a rest break in the working day.

4. If you have any working practices which may conflict with this decision or you have a particular issue then please contact me to discuss Alison@realemploymentlawadvice.co.uk or 023 8098 2006 or 01983 897003.

Case Name: Grange v Abellio London Limited

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