In Grange v Abellio London Ltd [2016] UKEAT 0130_16_1611 the EAT held that the absence of an express request by an employee to take rest breaks does not preclude a claim, under the Working Time Regulations 1998 (the “WTR”), for refusal to permit such breaks. A failure by the employer to make provision for rest breaks was sufficient, in and of itself, for such a claim to be brought. The onus is on an employer to ensure that its working practices enable workers to take the rest breaks to which they are entitled under the WTR, should they choose to do so.

Until July 2012, Mr Grange worked an eight-and-a-half-hour day, which included a half hour, unpaid lunch break. On 16 July 2012, Abellio sent an email to the Claimant stating that he should work eight hours, without any break, and leave earlier than he had done previously. The Claimant lodged a grievance in July 2014 in which he complained that he had been made to work without a rest break.

At first instance, the Employment Tribunal dismissed a claim brought by Mr Grange under the WTR. It relied upon the EAT’s decision in Miles v Linkage Community Trust Ltd [2008] IRLR 602, where it was held that there had to be an actual refusal of an express request to exercise the right to a break in order for there to be liability under the WTR. It concluded that there had not been any such request, or refusal, in Mr Grange’s case. Mr Grange appealed.

The EAT upheld the appeal. Adopting a purposive approach to the construction of the entitlement to rest breaks under the WTR, it preferred the conflicting approach taken by the EAT in Scottish Ambulance Service v Truslove UKEATS/0028/11 to the reasoning in Miles. It held that there is no requirement for the actual refusal of a specific request, rather that an individual’s entitlement to a rest break will be ‘refused’ by an employer if it implements working arrangements that prevent him/her taking that break. The case was remitted to the Tribunal to determine in light of the EAT’s decision.