In Grange v Abellio London, the Employment Appeal Tribunal (EAT) had to decide whether an employer could be considered to have ‘refused’ an employee a rest break even though no request for a break had been made.
Under the Working Time Regulations 1998 (regulation 30), workers are entitled to a rest break of 20 minutes if they work for more than six hours.
Grange was employed by Abellio London from June 2011 as a relief roadside controller, a role which involved monitoring and regulating bus services. He initially worked an eight and a half hour day, half an hour of which was an unpaid lunch break. However, the nature of this role made it difficult for him to take a break.
Consequently, in July 2012, the bus company emailed him asking him if he could work eight hours straight, without a lunch break, on the basis that he could leave half an hour earlier than previously.
In July 2014, Grange submitted a grievance to the company, claiming he had been forced to work without a meal break which had affected his health. The organisation rejected his grievance and he lodged an employment tribunal claim.
The best construction on the 2012 email Grange received was that the employer was expressing an expectation that he would work without a break – at worst, this was an instruction. The employment tribunal heard that Grange had not made any requests of his line manager for a rest break at any time since receiving the email. Following previous case law, the tribunal found there had to be a request for a rest break by the employee before there could be a refusal by the employer. Indeed, the ordinary dictionary definition of the word ‘refusal’ (described as an act of refusing, a denial or rejection of something demanded or offered) gave credence to this approach. As there had been no request for a rest break, the tribunal held there could not have been a refusal and rejected Grange’s claim. He appealed to the EAT.
On appeal, Grange argued that his employer’s failure to allow him to exercise his right to a rest break did amount to a ‘refusal’. In making its decision, the EAT commented on the conflicting case law on this issue and considered the language and purpose of the working time directive, which the UK’s regulations were designed to implement.
It was clear that the directive’s entitling workers to a rest break was intended to be respected proactively by employers. The EAT held the view that an employer is under an obligation to recognise a worker’s entitlement to take a rest break, and that this entitlement will be refused by an employer if it puts into place working arrangements that fail to allow workers to take a 20-minute rest break – there was no need for a worker to request the rest break.
It considered that there was an ‘error of approach’ in the employment tribunal and allowed the appeal. The case was remitted to the employment tribunal to decide whether, on the facts of the case, Grange had been denied his entitlement.
This EAT decision is important as it closes a loophole that meant employers could not be seen to be refusing an entitlement to a rest break if workers had not put in a request to take one – an approach not in keeping with the spirit of the directive which is aimed at protecting the health and safety of workers.
The case highlights the importance of providing workers with the rights given to them by the working time regulations. Employers should take a look at their working practices and ensure that arrangements are put in place to allow workers to benefit from their rights and entitlements. While workers cannot be forced to take rest breaks, they should be positively enabled to do so.
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