The Working Time Regulations 1998 (“WTR”) entitle employees and workers to rest breaks, daily rest periods and weekly rest periods. A rest break for an adult worker is 20 minutes every 6 hours. Where a worker is refused a right to a rest break he can bring a claim to the employment tribunal.
This issue can be of particular concern in the care sector, given the need to ensure continuous service to service users and challenges created by staffing levels i.e. colleagues off sick or on annual leave.
What constitutes a refusal of the right to a rest break?
Previous case law had suggested that there needed to be two elements to such a claim, namely (1) an assertion to the right and (2) a refusal of permission to exercise it. In other words there had to be an actual positive refusal by the employer, and “mere inadvertence” was insufficient to establish a breach.
This interpretation of the WTR, although taken literally from the regulations, leaves a gap of protection for workers and employees.
Indeed, the European Commission challenged the UK regarding its WTR on the basis they were incompatible with the requirements of the EU Working Time Directive. In particular, employers should encourage workers to take their breaks. UK government guidance was amended to remove any suggestion that employers only had a passive role to play. The Case of Scottish Ambulance Service v Truslove 2011 approved the observations of the EU commission, and stated that an employer has a duty to afford workers the right to exercise their rest breaks.
Grange v Abellio London Limited 2016
The case of Grange v Abellio London Limited 2016 has considered the above conflict. It concluded that employers need to proactively ensure that the working arrangements allowed for workers to take those breaks are in place. There will be a “refusal” if the employers puts in place working arrangements which fail to allow the worker to take a 20 minute break. It confirmed that an employer is not required to force employees to take their rest breaks, merely be given the opportunity to do so.
The facts of this case were that Mr Grange had a working day of 8.5 hours, with 30 minutes being unpaid and treated as a rest break. However, in reality it was very difficult for Mr Grange to take his half hour rest break. Thus, in 2012, the company changes the employee’s working day to 8 hours, the idea being that the employee would work without a break but finish half an hour earlier. This was communicated to all affected staff but it did not constitute a workforce agreement (which would permit excluding certain provisions of the WTR).
Mr Grange submitted a grievance in 2014, complaining that for two and a half years he had been forced to work without a meal break, which had impacted on his health. The grievance was heard and eventually rejected. Mr Grange lodged a claim in the employment tribunal, claiming that he had been denied his entitlement to a rest break throughout different periods of his employment. An employment tribunal at first instance dismissed the claim, finding that there had not been any actual request made which had been refused.
At appeal, the EAT concluded that the Tribunal had wrongly applied the law and that the working arrangements were such that the employer had failed to “afford” the employee the opportunity to take rest breaks. Thus, there had been a refusal. They remitted the case back to the tribunal to consider whether rest breaks had been denied in respect of:
- Where there had been a half hour lunch break built into the working day but Mr Grange had been too busy to take rest breaks i.e. pre-2012.
- Where an expectation was communicated that Mr Grange would work through an 8-hour day without break but could “take a meal break” if he wanted to i.e. post-2012.
- Where there was no change to working arrangements following the grievance in 2014.
Applying this decision, employers now need to ensure that their working arrangements allow for workers to take breaks and specifically consider how to build into the working day an employee’s rest break. If you afford workers the chance to take breaks, then they will struggle to advance any claim if they don’t take a break.
Remember, following a case earlier this year, for workers who are “mobile” i.e. domiciliary care staff travelling direct to clients – the time spent travelling from home to the first client and from the last client back home is “working time”. As such the daily rest breaks need to reflect this working time.
