In Grange v Abellio London Limited the Employment Appeal Tribunal (EAT) has stated that there is no requirement for an employee to ask for a rest break, and have that request refused, for there to be a breach of the Working Time Regulations 1998 (the WTR).
Until 2012, Mr Grange worked eight and a half hours per day and was permitted a half hour break each day. However, the nature of his role meant that it was usually difficult for him to take a break. As a result, his employer made a change to his working pattern whereby it asked him to work eight hours in a row without a break and finish 30 minutes earlier than he had previously.
Mr Grange raised a grievance in relation to not receiving a break but it was not upheld. Mr Grange then raised a claim in the Employment Tribunal (ET), which rejected his claim on the grounds that he had never actually requested to take a break so there could not have been a refusal.
On appeal, the EAT took a different approach, stating that it was against the spirit of the WTR to grant rest breaks only to employees who requested them. It also went further to state that an employer could be deemed to have refused an employee a rest break if it created operational arrangements that prevented a break from being taken, as Abellio had done with Mr Grange’s new working pattern.
The general message given by the EAT was that employers should “positively enable” employees to take a rest break, and the case was referred back to the tribunal to determine whether the employer had failed to do so in this case.
In light of this, employers may wish to confirm that the right to take a rest break is contained in documents such as contracts, and that the working patterns of their employees allow a break to be taken. Employers should also bear in mind that, while employees may choose not to take a rest break, this will not necessarily be a valid defence in the event of a claim, especially where an employee may have ‘chosen’ not to take a break due to work pressures.
A prudent approach would therefore be for managers to monitor employees within their team and, where it appears that breaks are not being taken, actively encourage employees to do so. Written evidence of such encouragement, such as emails reminding employees to take breaks, is likely to be helpful in the event of a claim.
If you have any questions on any of the issues raised in the above article, please contact Seanpaul McCahill.