Grange v Abellio London Ltd UKEAT/0130/16/DA
Under the Working Time Regulations 1998, a worker is entitled to an unpaid rest break of at least 20 minutes where a worker’s daily working time is more than six hours. If the right is refused, the worker can bring a claim in the employment tribunal.
In Miles v Linkage Community Trust Ltd (2008) (followed in Carter v Prestige Nursing Ltd (2012)), the EAT held that in order to bring a claim, the worker must have asserted their right, and the employer must then have refused to allow it.
However, the Advocate General gave guidance in the ECJ case of Commission v United Kingdom (2006) which took a different line, observing that an employer “cannot withdraw into a passive role and grant rest periods only to those workers who ask for them” but rather the employer has a “duty to afford” them. The UK government’s guidance to employers regarding working time and rest breaks (which at the time said the employer was not required to ensure that workers took their rest breaks) was subsequently amended and the current guidance is to be found here: it simply says that workers are entitled to rest breaks but gives no guidance on employers’ obligations (or not) to ensure they are taken.
The Claimant’s job required him to monitor the arrival and departure times of buses. When he was first employed in 2009, his working day was eight and a half hours, which included 30 unpaid minutes for his lunch break. In practice, it was not easy for him to take a break and from mid-July 2012, his working day was shortened to eight hours, the intent (as was explained to employees at a meeting at which the Claimant was not present) being that they would not take a break during this time.
The Claimant worked an eight hour day until July 2014, when he brought a grievance complaining that his health had been affected by not having a lunch break. His grievance was rejected and he brought a tribunal claim that he had been denied his right to a rest break. The tribunal dismissed his claim (in accordance with the reasoning in Miles and Carter above), holding there could be no denial of a break since, without a request from him, the Respondent could not have turned his request down.
The Claimant appealed to the EAT.
The EAT noted that, in addition to Miles and Carter, there was another EAT case (Scottish Ambulance Service v Truslove (2011) on this point, in which the reasoning in Commission v UK was preferred. In Truslove, the EAT had endorsed the approach in Commission v UK. It was necessary to adopt a purposive approach in order to give effect to the Working Time Directive and the approach in Truslove was therefore to be preferred.
The Working Time Regulations do not require a worker to give his or her employer notice of a wish to take a rest break, so the regulations do not require an explicit refusal. Employers should ensure that working arrangements permitted workers to take the rest breaks to which they were entitled, and a failure to do so will be considered a refusal of that right.
What to take away
The EAT is clear it is important to allow “real world” protection of rights, not merely on paper. If the Claimant’s working arrangements did not permit him to take a lunch break, then there is no need in its eyes for him to have expressly asked, and been refused, in order to bring a claim.
The right to opt out of the Working Time Regulations, signed by many, applies only to the 48 hours maximum working week and not to workers’ other statutory rights in those Regulations. As any employee who has eaten breakfast, lunch and dinner at their desk will attest, there are many workers who do not take the breaks to which they are entitled. Both employers and workers may say that this is a choice – however, unless employers’ working arrangements make clear that they are able to take a break if they wish, there may be many workers who would have a claim if they choose to make it.