We examine the Employment Appeal Tribunal's decision in Grange v Abellio London Ltd (UKEAT/0130/16/DA), which considered whether an employer had refused to permit rest breaks under the Working Time Regulations 1998 when it had failed to provide breaks but the employee had not requested them.

Mr Grange was a bus driver who had, prior to July 2012, worked an eight and a half hour working day, the intention being that he would take a half hour unpaid lunch break. In July 2012 his employer (Abellio) told employees, including Mr Grange, that they were to work straight through for eight hours, without the break, but to finish work 30 minutes earlier than they had previously. This communication did not equate to a workforce agreement to exclude or modify the rest break.

In July 2014, Mr Grange lodged a grievance complaining that he had been forced to work without a break for two and a half years and that it had been detrimental to his health. The grievance was heard and rejected by Abellio.

Mr Grange also lodged a claim with the employment tribunal (ET), claiming that he had been denied the right to a rest break.

Mr Grange's claim was dismissed. The ET said that his right to a rest break had not been infringed because there had been no request by him to have the breaks and therefore there had not been a refusal either. The ET followed the decision of the Employment Appeal Tribunal (EAT) in Miles v Linkage Community Trust Ltd (UKEAT/0618/07), which had held that an explicit request must have been made and refused. Mr Grange appealed this decision.

The appeal was allowed by the EAT and the case was referred back to the ET. The EAT found that there was conflicting case law in this area and therefore to answer the appeal, it looked at the wording and purpose of the Working Time Regulations (WTR), which provide the right for a worker to have a rest break of 20 minutes if they work in excess of six hours.

The EAT held that the WTR only express the entitlement to a rest break and that, while a worker has a right to enforce a break where one has been refused under the WTR, there does not have to be an explicit refusal and request before an employee can bring a complaint. Therefore by suggesting that there needed to be a request before the WTR could be enforced, the Miles case had added an extra requirement that was not needed.

The EAT instead adopted the approach taken in another case, Scottish Ambulance Service v Truslove (UKEAT/0028/11), which took a more practical view that an employer "cannot withdraw into a passive role and grant rest periods only to those workers who ask for them", but that there was a duty on employers to provide the worker with a rest break and therefore there is a refusal by an employer if it puts into place working arrangements that do not allow rest breaks to be taken. The ET will now decide if the fact that employees were too busy to take a break prior to July 2012 amounted to a failure to allow Mr Grange to exercise his entitlement and whether he was in fact denied his right after July 2012.

The EAT did not intend for employees to be forced to take rest breaks, however they should be "positively" enabled to do so and they do not need to request them. Many employees independently make the decision to work through rest breaks and employers should be aware that they will not be able to use that as a defence should an employee later seek to enforce their rights. Employers should take active steps to ensure that their employees are able to take breaks so that they can demonstrate they have met their obligations under the WTR. This is particularly important in situations where there may be health and safety implications if breaks are not taken or it could be detrimental to employees' health