Employers Must Be Proactive to Ensure Workers Get Proper Breaks

Except in certain circumstances, an adult worker whose daily working time is more than six hours is entitled to a 20-minute uninterrupted rest break as laid down by Regulation 12(1) of the Working Time Regulations 1998 (WTR). In an important test case concerning a bus driver who claimed to have been forced to work eight-hour shifts without a break, the Employment Appeal Tribunal (EAT) has ruled that employers are required to take a proactive approach to compliance with this entitlement (Grange v Abellio London Limited).

Prior to July 2012, Mr Grange's working day was fixed at eight and a half hours on the basis that he would enjoy a half-hour unpaid lunch break. However, the nature of his work made it difficult in practice for him to take such breaks. On 16 July 2012, he received an email from his employer, Abellio London Limited, expressing its expectation (at best) or instruction (at worst) that in future he was to work an eight-hour shift, without the half-hour break, but then to leave work half an hour earlier than he had done previously. In July 2014, he raised a grievance on the ground that he had been forced to work without a break and this had contributed to a decline in his health, but this was rejected.

Mr Grange subsequently complained to an Employment Tribunal (ET) that Abellio had denied him his entitlement to a 20-minute uninterrupted rest break, as provided by Regulation 12(1) of the WTR.

In dismissing his claim, however, the ET followed the approach taken by the EAT in Miles v Linkage Community Trust Limited and found that Abellio had not actually refused a request by Mr Grange to allow him to exercise his right to a rest break. The first time that he had complained about not being afforded breaks was when he lodged the formal grievance that his health had been affected by being forced to work non-stop for eight hours and there was no evidence that his employer had, in fact, refused his request.

In upholding Mr Grange's challenge to that decision, the EAT noted that there was conflicting legal authority as to whether there had to be an active refusal by an employer to allow breaks in order to give rise to liability under the WTR.

As the WTR were introduced in order to implement the EU Working Time Directive (WTD), it was appropriate to consider the language and purpose of the WTD, whereby rest periods are considered to be essential for the protection of workers' health and safety. Adopting that approach, it was clear that the construction of the WTR allowed by the EAT in Scottish Ambulance Service v Truslove was to be preferred to the approach taken in Miles.

The EAT therefore held that the WTR impose a duty on employers to actively respect workers' rights to rest breaks. They are required not merely to permit such breaks but to proactively ensure that working arrangements allow for workers to take them.