A recent EAT ruling has demonstrated the importance of proactively ensuring that workers are able to take the prescribed rest breaks and reminds us of the risks of failing to do so …

What do the Working Time Regulations provide for?

The Working Time Regulations 1998 provide for a rest break of 20 minutes where a worker’s daily working time is more than 6 hours. In reality, many workers in high-pressured environments do not take rest breaks and will not complain that the right has been denied to them. The perception may be that it is their choice, given their heavy workload, not to take a break. However, a recent Employment Appeal Tribunal (EAT) case has established that an employer will not be able to use that as a defence if the employee later complains and seeks to enforce the right.

In Grange v Abellio London Ltd, the EAT judge held that employers must do more than merely permitting the taking of rest breaks, and must ‘proactively ensure working arrangements allow for workers to take those breaks.’

Facts

Mr Grange’s original 2009 contract required him to work an 8½ hour day, which included an unpaid half hour lunch break. In reality, it was difficult for Mr Grange to take this half hour break during working hours so he rarely did. Matters moved on in July 2012, when his working day was changed to an eight-hour day, and he was told that he should work for eight hours without a break and then leave half an hour early.

Mr Grange brought a claim in the tribunal claiming that throughout both periods of his employment he had been denied his entitlement to a rest break.

The Tribunal Decision

An employment tribunal dismissed Mr Grange’s claim, on the basis that he had never requested a rest break. It found that he had therefore never been refused one by his employer.

Mr Grange appealed to the EAT, which overturned the employment tribunal decision. The judge held that, whilst workers cannot be forced to take rest breaks, employers need to be proactive in ensuring that workers can take rest breaks during the working day. If an employer puts in place working arrangements that fail to allow a 20-minute rest break, the worker’s entitlement to a rest break will be deemed to have been refused.

Best Practice

Employers are faced with a perennial balancing act of encouraging employees to take rest breaks, without forcing them to do so. The health and productivity benefits of regular breaks are well-established: heavy workloads, tight deadlines, and long hours at a desk, not only affect mental capacity and performance but physical health as well.

Rest breaks can be difficult to promote or enforce in practice. However, as this case demonstrates, employers who do not take proactive steps to enable workers to take breaks will have no defence if an employee later complains and seeks to enforce their rights. Employers are advised to keep working arrangements, and wellbeing policies, under review so that workers are able and encouraged to take a rest break should they wish to do so.

Finally, it is worth remembering that ‘worker’ is a broader concept than ‘employee’. Consequently, the right to rest breaks may apply to individuals who do not have contracts of employment or who may be regarded by an organisation as ‘self-employed’. The risk of such individuals bringing claims is frequently overlooked – effective reviews of working patterns will include all those performing services for a business, whether as an employee, or as a worker, and whether full-time, part-time or casual.

To learn more about the issues in this article and how they may affect you, please get in touch.