This week we look at the recent case of Grange v Abellio London Ltd which focused on whether failing to allow for a worker’s rest breaks could amount to a refusal to permit that worker to exercise their rights under the Working Time Regulations.
Mr Grange initially had a shift of 8.5 hours, which was meant to include a 30 minute lunch break. His role was a busy one and he often found it difficult or inconvenient to fit the 30 minute break into his schedule. As a result, his employer decided to reduce his working day to 8 hours so that he could work without a break and leave half an hour earlier instead. Mr Grange continued to work to this new arrangement for 2.5 years without requesting to take lunch breaks.
When the relationship with his employer broke down, Mr Grange brought a claim against Abellio in the Employment Tribunal under section 30 (1) of the Working Time Regulations 1998, for failing to permit him to exercise his right to take rest breaks for the previous 2.5 years.
Under Regulations 12(1) & 12(3) of the Working Time Regulations, workers with a daily working time of more than 6 hours are legally entitled to a daily 20 minute rest break. Employers are not required to force their workers to take this break and workers can chose to work through their rest period if they wish, as long as it does not put their or another’s health and safety at risk. Where an employer does require the worker to work through their work break, they must offer “compensatory rest” in exchange.
However, employers should not deny their workers the option of taking their entitled break, or refuse their request to take a break to which they are entitled, as this will be a breach of their rights.
At first instance the Employment Tribunal held that, as Mr Grange had never actually asked to take his breaks, there had been no refusal by his employer to allow him to exercise his right. As a result Mr Grange’s claim was dismissed.
The Employment Appeal Tribunal took a different view. The EAT took account of the Working Time Directive, from which the Working Time Regulations stem. They held that the Directive requires employers to provide their workers with the opportunity to take a rest break, and that creating a working arrangement which fails to allow the worker that opportunity could amount to a refusal to allow the worker to take their entitled break.
As a result the EAT found it was possible that Mr Grange had been refused his rest break and that his rights under the Working Time Regulations could have been breached, despite him not making any explicit request for a break.
The EAT allowed Mr Grange’s appeal and remitted back to the Employment Tribunal the question of whether, on the particular facts of this case, he was in fact denied his entitlement.
This case shows that a direct refusal by the employer is not required for a breach of the Working Time Regulations to take place. An employer can breach a worker’s statutory right to a rest break by simply failing to allow for those breaks within their working pattern.
How can employers prevent such breaches?
It is important for employers to ensure they do not preclude employees from taking their statutory breaks. They can do this by ensuring the statutory breaks are scheduled into the working day e.g. allowing for a lunch hour. Ideally these breaks should be in the middle of the working day. Employers should actively encourage workers to take their breaks and make sure they create an atmosphere which encourages this, to ensure workers are not under pressure to skip their breaks either from employer pressure or through peer pressure within the workplace.
The Working Time Regulations continue to be a source of difficulty for employers and a haven of opportunity for employees. The Employment Group regularly advises on the developing issues surrounding the Working Time Regulations particularly on the impact of holiday pay and the risk of such claims.
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Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.