Under the Working Time Regulations (WTR), workers can present a claim to the employment tribunal if an employer has refused to allow them to exercise their rights under the WTR. In Grange v Abellio London Limited the EAT had to decide whether an employer can only be said to have "refused" a rest break if an employee has made a specific request for one.
Initially the employee's working day was 8.5 hours, including a 30 minute unpaid lunch break. However, the nature of the employee's work as a bus controller meant that it was difficult for him to take a break. In 2012 the employer emailed the employee – as the Tribunal put it, expressing its expectation (at best) or instruction (at worst) that he was to work straight through for eight hours, without the half hour break, but then to leave work 30 minutes earlier.
The employee argued that the employer had refused to allow him to take a rest break, both before the 2012 change to the working day and after. The Tribunal accepted, based on the EAT's 2008 decision in Miles v Linkage Community Trust Ltd, that an employee needs to have requested a rest break before an employer can be said to have "refused" it. In this case, the employee had not specifically requested the right to a rest break, so the Tribunal dismissed his claim.
The EAT overturned the decision. The Miles case conflicted with a later decision of the Scottish EAT (Scottish Ambulance Service v Truslove) that the right to a rest break could not be dependent on the worker making a formal request for a break. Truslove was consistent with the European Court's approach – that minimum rest periods are essential for the protection of health and safety and that there is no distinction between entitlements (such as the right to rest breaks) and obligations (such as the employer's duty to ensure maximum working hours).
The EAT in Grange considered that employers are not simply obliged to allow rest breaks where a request is made, but have a proactive duty to ensure that working arrangements allow workers to take those breaks. The EAT did not agree with the Tribunal that a refusal for the purposes of a WTR claim has to amount to an active response to a positive request, rather than the denial of a right through the arrangement of the working day.
The EAT sent the case back to the Tribunal for it to consider whether there had been a failure to allow the employee to exercise his entitlement to a rest break.