Summary: Do employees need to actually request a rest break (under the Working Time Regulations) before making a claim that they have been refused rest breaks?
No, says the EAT in Grange v Abellio London Ltd available here.
Facts: Mr Grange was employed as a ‘Relief Roadside Controller’ by Abellio London Ltd and his job required him to regulate and monitor bus services. He initially worked eight and a half hours per day, with a half hour unpaid rest break, which he found difficult to take.
In July 2012, Abellio changed Mr Grange’s hours so he was required to work eight hours per day, but finished half an hour earlier. This change was made via an announcement at a staff meeting (which was not attended by Mr Grange), but this did not constitute a workforce agreement to exclude or modify the rest break.
In July 2014, Mr Grange raised a grievance in relation to a failure to provide breaks. His grievance was not upheld. Mr Grange brought a claim in the Tribunal, claiming that he had been denied his entitlement to a rest break under the Working Time Regulations 1998. The Tribunal dismissed his claim, finding that he had not been denied his right since no actual request had been made and refused.
Mr Grange appealed to the Employment Appeal Tribunal (EAT).
The EAT found that an employer has a duty to provide a worker with a rest break, regardless of whether it has been requested. The EAT said that entitlement to a rest break will be refused if the employer puts in place working arrangements that fail to allow the taking of 20 minute rest breaks. Whilst workers could not be forced to take rest breaks, employers needed to proactively ensure that working arrangements allowed for workers to take those breaks.
The EAT remitted the case back to a Tribunal to determine whether rest breaks had been denied during the different arrangements throughout Mr Grange’s employment with the benefit of the EAT’s guidance.
Implications: Employers should ensure that working arrangements enable the worker to take their breaks, regardless of whether a worker requests such break or change to working arrangements. The reality is that many workers in high-pressured environments do not take rest breaks and will not complain that the right has been denied to them. Their perception may be that it is their choice, given their heavy workload, not to take a break. However, an employer will not be able to use that as a defence if the employee later complains and seeks to enforce their rights.