17 November 2016

The Employment Appeal Tribunal has recently issued judgment holding that a ‘refusal’ to permit rest breaks under the Working Time Regulations (WTR) can exist where the employer fails to make provision for such breaks, even where the employee does not expressly request them.

In Grange v Abellio London Ltd the Claimant worked for Abellio London Ltd as a Relief Roadside Controller (RRC). This involved regulating and monitoring bus services. His working day was originally 8.5 hours long, which was meant to include a 30 minute lunch break. Due to the nature of his job, the he found it difficult to take a rest break. In 2012, his employer decided to reduce the working day for RRC’s to 8 hours, which would involve them working without a break but finishing 30 minutes earlier.

In 2014, the Claimant raised a grievance complaining that he had been forced to work without a rest break for 2.5 years. His grievance was rejected and he raised Employment Tribunal proceedings arguing that his employer had refused to allow him to exercise his right to a 20 minute rest break under Regulation 12(1) of the WTR.

His claim was rejected by the Tribunal on the basis that his employer had not refused to permit the exercise of this right, as required by Regulation 30. The Claimant had not asked to take daily rest breaks following the change to his hours. The Claimant appealed to the EAT.

The EAT decided that an employer has an obligation to permit employees to take a rest break and that this entitlement will be ‘refused’ if it puts in place working arrangements that fail to permit the taking of such breaks. The case has been remitted back to the Employment Tribunal to determine whether the fact that RRC’s were too busy to take their rest breaks pre 2012 amounted to a failure to allow the Claimant to exercise his Regulation 12(1) entitlement and whether he was denied this entitlement after the variation to his working hours in 2012.

This case serves as a useful reminder that employers should take active steps to ensure that employees and workers are able to take rest breaks. The WTR entitle workers to an uninterrupted break of 20 minutes when their daily working time is more than six hours. This should be a break in working time and should not be taken either at the start or at the end of a working day. It should also be remembered that the WTR provide that young workers are entitled to a rest break of 30 minutes if their daily working time is more than 4.5 hours.

As ever speak to your BTO team member who can help you further.

Contact: Lesley Grant Associate ljg@bto.co.uk T. 0141 221 8012