Can a failure to allow for a rest break amount to a ‘refusal’ even if there has not been a request for such a break?
Yes, said the Employment Appeal Tribunal (EAT) in the case of Grange v Abellio London Ltd UKEAT/2016/0130.
In this case, the EAT held that an employee can bring a claim for a refusal of a rest break even if the employee had never expressly requested such a break.
The claimant was contracted to work an eight and a half hour shift, which included a half hour unpaid lunch break; the break was difficult to fit in because of the busy schedule. The company therefore decided in 2012 to reduce the working hours to eight hours without a break and therefore leave half an hour earlier. The claimant later lodged a grievance in 2014 complaining that he had been forced to work without a break for two and a half years. The grievance was rejected.
The claimant brought a claim in the Employment Tribunal (ET) under the Working Time Regulations 1998 (WTR), complaining that his employer refused to permit him to exercise his right to a 20 minute rest break (which applies where the working day is longer than six hours).
The ET rejected his claim on the basis that, because he had never expressly requested a rest break following the change in hours, there had not been a refusal of a rest break.
The claimant appealed to the EAT. The EAT overturned the decision on the grounds that the instruction to work without a rest break could be construed as a refusal, without an explicit request for such a break. The entitlement to take a rest break will be ‘refused’ if an employer’s working arrangements do not allow the employee to take the requisite rest breaks. Employees cannot be forced to take rest breaks but they should be positively encouraged to do so.
Employers should consider this decision carefully as it will have specific consequences, when, for example, an employee requests to leave work early or indeed start later on the basis that they will ‘work their lunch hour’. This decision suggests that where this practice is agreed, the potential consequence is that the employer is in breach of the Working Time Regulations.
If you need any advice in relation to the correct construction of an employee’s entitlement to a rest break under the Working Time Regulations, please contact:
Partner and Head of Employment
T. 020 7227 7410
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.