Employer snookered over rest and break

The Working Time Regulations 1998 state that workers and employees are entitled to an uninterrupted break of 20 minutes when daily working time is in excess of six hours.

In Grange v Abellio London Ltd [2016] the Claimant was employed initially as a bus driver from 2009 to 2011. In 2011 his role changed and he began working as a Relief Roadside Controller for the company. The Claimant’s shift was eight-and-a-half hours with the intention, at least at the outset, that he would take half an hour as an unpaid lunch break.

The employment tribunal found that in 2012 the employer had sent an email to the Claimant “expressing its expectation (at best) or instruction (at worst)” that the Claimant ought to work straight through for eight hours, without a break and instead he would be permitted to finish work half an hour earlier.

The Claimant alleged that he therefore worked for two-and-half years without a rest break, out of fear that if he protested against his working conditions, he would be forced to go back to being a bus driver.

At the end of that period the Claimant lodged a grievance complaining that being forced to work without a break had contributed to a decline in his health. The grievance was rejected so the Claimant lodged a claim with the employment tribunal.

The tribunal rejected the Claimant’s claim. It found the Claimant had never actually asked for a rest break and therefore it could not be said that he had been refused one by the employer.

The Claimant appealed the tribunal decision.

The Employment Appeal Tribunal held that although workers or employees cannot be forced to take rest breaks, employers are, however, under a duty to proactively ensure that working arrangements allow for individuals to take the required rest breaks. The EAT held that it was not a prerequisite for there to be both a request on the part of the employee and a specific refusal of that request by the employer in order to give rise to legal liability.

That being the case, the EAT overturned the decision handed down by the employment tribunal and remitted the case back to the employment tribunal.

The ruling in this case goes against the decision in Miles v Linkage Community Trust [2008]. In Miles it was held that a breach of the Working Time Regulation would only occur where an employer had rejected a direct request from an employee for rest breaks.

This case means employers should take care to ensure there is no suggestion that employees should not take proper rest breaks, or claims could follow.

Dom Bonham