The EAT has held that an employer may be deemed to have ‘refused’ to permit rest breaks even if an employee has not expressly requested them. It is enough, simply, where an employer puts in place working arrangements such as a busy schedule or a workload that make it difficult for employees to take lunch or other rest breaks.

Background

Regulation 30 of the Working Time Regulations 1998 obliges an employer to provide its workforce with a minimum 20 minutes’ rest break, where they work a period longer than six hours (unless the special rules about compensatory rest apply).

In Grange v Abellio, the bus company required its Relief Roadside Controllers (RRCs) to work an eight-half hour shift with half-hour for lunch. Due to the busy work schedule, RRCs found they were unable to fit in their lunch break. Abellio decided to reduce its RCCs’ working day to eight hours, cutting out the lunch break.

Mr Grange complained to an Employment Tribunal (ET). The ET rejected Mr Grange’s claim because if found that Mr Grange had not attempted to exercise his right to a 20 minutes’ rest break. The ET noted that, under the Working Time Regulations 1998, the right to bring a claim only arises where an employer has ‘refused’ to permit rest breaks and, as Mr Grange had not expressly requested his, Abellio could not be said to have refused him.

Mr Grange appealed to the Employment Appeal Tribunal (EAT). To assist in its determination of the matter, the EAT looked at the purpose of the EU’s Working Time Directive. Noting that the purpose of the Working Time Directive is to protect workers’ health and safety and that the rules about working time are intended to be actively respected by employers, the EAT held that the Working Time Directive places an onus upon an employer to afford its workforce the right take a rest break. From that finding, the EAT held that an employee’s entitlement to a rest break will be ‘refused’, if an employer puts into place working arrangements that fail to allow the taking of such breaks.

Implications

• Employers need to be aware that, where its employees are working to a busy schedule or under a heavy workload that means they skip a minimum 20 minutes’ lunch break, there is a risk they may be deemed to be putting in place arrangements that ‘refuse’ to permit their employees rest breaks.
• Employers may wish to understand more fully, the special rules about compensatory rest where their workers regularly skip lunch.
• Employers may wish to update relevant training to managers.
• Note that a tribunal finding that an employer has refused to permit rest breaks under the Working Time Regulations 1998 will not entitle an employee to compensation for injury to feelings (Santos Gomes v Higher Level Care Ltd,2016 EAT) but the employer will be liable for any financial loss suffered by the employee.