Give us a break? A failure to give rest breaks could be unlawful even when they aren’t requested

In Grange v Abellio London Ltd, the EAT has held that a claim for ‘refusal’ to permit rest breaks under the Working Time Regulations 1998 can be brought where the employer fails to make provision for such breaks, even if the worker does not expressly request them. The EAT has taken the view that whilst workers cannot be forced to take rest breaks they must be positively enabled to do so.

Mr Grange works for AL Ltd as a ‘Relief Roadside Controller’ (RRC), which involves regulating and monitoring bus services. His working day initially lasted eight and a half hours, which was meant to include a half-hour lunch break. That break was often difficult to fit in given the busy work schedule. In July 2012, AL Ltd decided to reduce the RRCs’ working day to eight hours so that they would work without a break and finish half an hour earlier.

In July 2014, Mr Grange submitted a grievance complaining that for two and a half years, he had been forced to work without a break. When his grievance was rejected, he complained to an employment tribunal that AL Ltd had 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 tribunal rejected Mr Grange’s claim on the basis that there had been no ‘refusal’ to permit the exercise of that right.  Other case law suggested a ‘refusal’ had to be a distinct act in response to a worker’s attempt to exercise the right. Mr Grange had made no request to take daily rest breaks following the change in hours. The EAT rejected this approach and made clear an employer has an obligation to afford the worker the entitlement to take a rest break; that entitlement will be ‘refused’ if it puts into place working arrangements that fail to allow the taking of such breaks.

So what does this mean for your existing arrangements? 

Providers will need to ensure that employees have a realistic option of taking their relevant unpaid breaks or be satisfied they fall within one of the exceptions to the provision of such breaks.  The exceptions are narrowly drawn and may well not be interpreted in favour of employers.  We consider the most practical solution is to enter into a workforce agreement (or collective agreement if you recognise unions) to agree how rest break provisions need to be modified taking into account your services.  The agreement will need to cover how you will ensure workers receive compensatory rest.  Case law has found that compensatory rest should be provided as soon as possible following the missed break. As a result, arrangements for compensatory rest will need to be carefully negotiated. A workforce agreement is binding where it:

• is in writing;
• has been circulated in draft to all workers to whom it applies together with guidance to assist their understanding of its terms.
• been signed before it comes into effect by all the relevant representatives (or, if there are 20 or fewer workers employed by the employer, either by all the relevant representatives or a majority of the workforce); and
• have effect for no more than five years.

Will Brexit help?

We don’t believe Brexit will help.  It had been expected that the Working Time Regulations would be one area of law that the Government would look to refine when no longer constrained by EU rules.  However, Theresa May has been clear that existing workers’ rights will not be eroded whilst she is Prime Minister and therefore the Working Time Regulations are not expected to change anytime soon.

If you would like any further information on the operation of the Working Time Regulations contact Matthew Wort or your usual contact in our employment team.