In the past there have been conflicting EAT decisions on the correct approach to determining whether rest entitlements had been denied under the WTR. However, in the case of Grange v Abellio London Limited, the EAT has made it clear that employers have a proactive duty to ensure a worker's entitlement to take a rest break and that entitlement will be held to have been "refused" if the employer puts into place working arrangements that fail to allow the taking of the required rest break.
Background
Under the Working Time Regulations (WTR), a worker is entitled to a 20-minute rest break if their daily working time is more than 6 hours. If this right is refused, workers can bring a claim.
Previous case law has indicated that in order to bring a claim there had to have been an actual refusal by an employer; a literal interpretation of the word “refusal” and for such a refusal to occur, an actual request is needed to have been made by the individual.
Facts
Mr Grange was employed by Abellio London Limited (Abellio) from 2009, working eight and a half hour days. The half an hour was unpaid and treated as a rest break. In reality, it was often difficult to take that break due to the nature of the job. In recognition if this, both Mr Grange’s and others working in his role had their hours reduced to eight hours so that employees would finish earlier with no break. This was communicated to Mr Grange in an email sent in July 2012.
Two years later, Mr Grange submitted a grievance complaining that he had been forced to work without a meal break, impacting on his health. The grievance was rejected.
Mr Grange lodged a claim before the grievance proceedings had concluded, claiming he had been denied his right to a rest break. This was dismissed. The Tribunal found that a breach only occurs when a worker asks to exercise their right and is subsequently refused.
Mr Grange appealed.
Decision
The EAT allowed the appeal.
It found that entitlement to a rest break “is intended to be actively respected by employers” and a “purposive approach” should be taken. This means that employers should not only permit rest breaks to be taken, but also to proactively ensure that working arrangements allow for workers to take them.
Entitlement will be held to have been “refused” if an employer has put in place working arrangements that do not allow the worker to take required breaks.
Comment
This is an important decision as it makes clear that employers have an active duty to ensure workers are able to take a 20-minute uninterrupted rest break, for every six hours worked.
It falls on the employer to ensure rest breaks are actively provided because the EAT rejected the suggestion that the individual is required to request a rest break before entitlement can arise.
Employers should review all working arrangements and check that workers are able to take rest breaks if they want to. Employers are not required to ensure that workers actually do take their rest breaks.
In reality, many workers in high-pressured environments do not take rest breaks and probably won’t complain that the right has been denied. Their reasoning may be that it is their choice. However, be aware that as an employer, you will not be able to use this as a defence if the employee later complains and seeks to enforce their rights.
