In Grange v Abellio London Ltd UKEAT/0304/17/JOJ, the Employment Appeal Tribunal has ruled that compensation for failure to provide adequate rest breaks pursuant to the Working Time Regulations can include an award for personal injury
Regulation 12 of the Working Time Regulations 1998 (SI 1998/1833) (WTR) provides that where an adult worker's daily working time is more than six hours, the worker is entitled to a rest break of not less than 20 minutes. The WTR also provide that, if a claim is well founded, a tribunal can award a compensation sum that it considers is just and equitable considering the employer’s default and any loss suffered by the worker.
Mr Grange was employed by Abellio London Ltd (Abellio) as a Relief Roadside Controller or SQS (SQS) from June 2011. As an SQS, Mr Grange's role was to monitor the arrival and departure times of a bus service, regulate the frequency of the service and adjust it to traffic conditions. Prior to starting his role as an SQS, Mr Grange had been employed by Abellio as a bus driver from September 2009.
The working day for an SQS originally lasted 8.5 hours with the half hour being unpaid and treated by Abellio as a lunch break. Whereas as a bus driver Mr Grange was entitled to scheduled rest breaks, the responsive nature of the SQS role rendered it difficult to take the half hour envisaged by Abellio as a lunch break. From July 2012, the working day for an SQS was reduced to eight hours such that an SQS would work for this length of time with no break but finish half an hour earlier than they previously had.
On 14 July 2014, Mr Grange submitted a grievance contending that he had been forced to work without a meal break which had impacted his health. Subsequent to submitting this grievance, Mr Grange was signed off work sick in relation to an ongoing condition and the grievance was ultimately rejected.
Mr Grange instituted proceedings against Abellio before the Employment Tribunal, claiming that Abellio had acted unlawfully by breaching its obligations under the WTR in refusing Mr Grange rest breaks.
"Refusal" to allow a break
At first instance, the Employment Tribunal dismissed Mr Grange's claim and cited an Employment Appeal Tribunal (EAT) that held that refusing a rest break necessitated a distinct act of refusal in response to a worker's request for a rest break or attempt to take that break. "Refusal" was given its ordinary dictionary meaning of "an act of refusing, a denial or a rejection of something demanded or offered".
In this case, the change to the working day from July 2012 has been communicated to the claimant via an email on 16 July 2012 which expressed Abellio's expectation that an SQS would work for eight hours without a break. The Employment Tribunal concluded that this communication was not a "refusal" by the employer to allow the break; at best it was an expectation of the hours to be worked, at worst it was an instruction.
However, Mr Grange appealed to the EAT on this point and was successful. The EAT analysed the language and purpose of the Working Time Directive (WTD), which the WTR implemented into UK law, and considered it "clear the WTD entitlement to a rest break is intended to be actively respected by employers". With that in mind, the EAT found, that Mr Grange’s employer’s refusal did not have to be an active response to a positive request. The denial of the right could take place through the employer’s arrangement of Mr Grange’s working day.
Just and equitable compensation
Upon remission back to the Employment Tribunal, there were various discussions regarding jurisdiction of the claim and the extent of the period Mr Grange could actually claim for.
Ultimately, due to sickness absence and annual leave, the Tribunal found and Abellio conceded that there were only 14 different working days it had denied Mr Grange rest breaks. For these 14 days, Abellio was unable to show that working arrangements were in place to facilitate the taking of rest breaks by Mr Grange, therefore his claim succeeded and the Tribunal turned to consider compensation.
Mr Grange had suffered no financial loss – he had been paid his full salary even with the shorter working day. However, the Tribunal did find itself satisfied that the lack of rest breaks would have had some adverse impact even if they did not exacerbate Mr Grange's ongoing medical condition (a bowel condition) and therefore considered that some compensation was due. On this basis, the tribunal considered that a just and equitable award was £750.
Mr Grange appealed to the EAT on the jurisdiction point and Abellio cross-appealed in respect of the compensation, contending that the Tribunal had awarded compensation which amounted to an award for injury to feelings or personal injury, which was contrary to previous Court of Appeal guidance, or in the alternative, the award was excessive in the absence of medical evidence.
With regard to Abellio's cross-appeal, the EAT agreed that a claim for compensation under Regulation 30(4) WTR did not allow an award for injury to feelings. However, the EAT did not consider the Court of Appeal guidance to be determinative on whether Regulation 30(4) WTR excluded an award for personal injury.
The EAT also did not view the award as excessive. Low value claims could be dealt with on a common-sense basis, without the need for medical evidence. Mr Grange had given evidence and been cross examined on how the lack of rest breaks had affected his health so the tribunal had enough evidence to make an award of £750 for 'discomfort and distress'
Abellio's appeal was therefore dismissed.
The case confirms two important but distinct points:
- An employer does not have to actively "refuse" a rest break for that to amount to a breach of the WTR – simply arranging working patterns in a particular way, which prevents a rest break from being taken, is sufficient; and
- Although an award for injury to feelings is excluded from rest break compensation, an award for personal injury is not.