Under UK law, the starting point is that a worker is entitled to a rest break of 20 minutes, where he or she works for more than six hours a day (Regulation 12(1), Working Time Regulations 1998 (the WTR)). If an employer refuses to permit a worker to take a rest break, then the worker can bring a claim in the employment tribunal (Regulation 30, WTR).

Previous EAT authorities have held that a literal interpretation must be taken in deciding whether or not an employee can bring a claim for a failure to provide a rest break under the WTR (principally the decisions in Miles v. Linkage Community Trust Ltd [2008] IRLR and Carter v Prestige Nursing Ltd UKEAT/0014/12). This literal interpretation required (i) a positive assertion by a worker of his or her right to have a rest break and (ii) a positive refusal by the employer to accommodate the worker's right. This approach may have led to the unsatisfactory situation where, if an employer failed to respond to a worker's request for a rest break, rather than positively refusing it, through no fault of the worker, he or she may have been unsuccessful in bringing a claim.

More recently in the case of Grange v Abellio London Ltd [2016] UKEAT 0130/16/1611, the Court has departed from this literal interpretation in favour of a purposive approach. Mr Grange's role was to record the arrival and departure times of a bus service for Abellio London Ltd (Abellio). Over time, Mr Grange's working hours were changed, and whilst he previously worked for eight hours with a half hour lunch break, his new working hours meant that he worked for eight hours uninterrupted (with the intention that employees could leave work half an hour sooner at the end of the working day). Approximately two years after the change to Mr Grange's working hours was made, he raised a grievance with Abellio that this health had deteriorated because of the lack of a rest break. Mr Grange's grievance was rejected and he brought a claim at the Employment Tribunal.

At first instance, the Employment Tribunal followed the literal approach preferred in the cases of Miles and Carter. The Employment Tribunal held that, as Mr Grange had not satisfied the two-step approach outlined above (namely positively asserting his right to a rest break, which the employer subsequently refused), then Mr Grange could not be successful in his claim. Mr Grange appealed to the Employment Appeal Tribunal (the EAT).

The EAT permitted Mr Grange's appeal, and remitted the matter to the Employment Tribunal for reconsideration. The EAT considered the wording of the WTR and determined that, in simple terms, the WTR provided Mr Grange with an entitlement to a rest break and the opportunity to enforce that right if Abellio refused him a rest break. Nowhere in the WTR did it say that an explicit refusal must be given by an employer before a worker could bring a claim and, in that respect, the earlier authorities which took a literal approach applied an additional hurdle for an employee to bring a claim which was not required by statute. Consequently, the EAT preferred the observations of the Advocate General in Commission v. United Kingdom (Case C484/04) [2006] ECR 1-7471 which were approved in another EAT authority (Scottish Ambulance Service v. Truslove UKEAT/0028/11) that it is not enough for an employer to take a passive role in affording rest breaks to workers, and instead employers have a "duty to afford" rest breaks to them.

We suggest that employers take a fresh look at current working arrangements with staff. Employers need to make sure that you positively afford them the opportunity to take a rest break if they so wish. Of course, some workers may choose not to take a break, but so long as you are not stopping them from taking a break, it is unlikely that they will complain about the lack of a rest break nor should they have grounds for bringing a claim.