Employment Appeal Tribunal re-emphasises duty to ensure employees can take a break during the working day
Whilst the idea of an hour for lunch is very much dependent on workplace practice, a recent Employment Appeal Tribunal (EAT) case (Grange v Abellio London Ltd) re-emphasised the legal duty on employers to enable employees to take at least a 20-minute break during the working day if they wish to.
Legislation
Working Time Directive (WTD)
By way of a background refresher, under the Working Time Directive:
- All workers should have adequate rest periods. There must be minimum daily, weekly and annual periods of rest and adequate breaks.
- Rest must be expressed in days or hours and/or fractions of these.
- Rest breaks ‘must be granted’.
It is a well-established that any regulations created by member states using a Directive must be consistent with that Directive’s intentions. Under the Working Time Regulations 1998 (WTR) (which introduced the WTD into law in Great Britain):
- Where a worker’s daily working time is more than 6 hours, they are entitled to a rest break
- Subject to any collective agreement or workforce agreement, that rest break is an uninterrupted period of not less than 20 mins which may be spent away from any workstation
- A worker may complain to an employment tribunal that their employer has refused to permit them to exercise their right to a rest break
- A tribunal may make an award to the worker regarding the employer’s refusal to permit the worker to exercise their right.
Facts
The Claimant was employed as a bus driver and then as a Relief Roadside Controller. His working day was 8.5 hours including a 30-minute rest break. The Claimant’s role was to monitor and adjust departure of bus services in order to allow for traffic. ?The nature of this role made taking a break difficult as break times were not fixed and workload could fluctuate suddenly.
In response to this the Respondent shortened the working day to 8 hours without a break, allowing employees to finish early having worked without a break.
Originally the Employment Tribunal (ET) was asked whether the Respondent’s expectation that the Claimant work 8 hours with no break amounted to a denial of the right to take a 20-minute break. The ET followed the case of Miles and decided that the expectation did not. The ET found that in order for a refusal to have been made there needed to have first been a specific request.
The Claimant appealed.
The EAT examined the existing case law, particularly the cases of Miles and Truslove which each interpreted the Working Time Regulations differently.
The Miles case said that there were two steps to a breach of article 12(1). Step 1, there must be a request to exercise the right. Step 2, there must be a refusal of permission to do so. You can see how the ET came to its decision on this basis.
Under the Truslove approach however, the employer has an obligation to permit the worker to exercise their right to a rest break. That right will be breached if the employer puts into place working arrangements which fail to allow the taking of 20-minute rest breaks. If the employer has taken active steps to ensure working arrangements enable the worker to take the requisite rest break, it will have met its obligations. Workers cannot be made to take rest breaks.
The EAT could not reconcile the judge in Truslove’s obligation upon employers with the judge in Miles’s requirement of an actual refusal. Using Miles the right under article 12(1) would simply be the right to request a break, not to have one.
The EAT stated that if interpretation of the WTR is unclear then it should look behind it to the WTD. The WTD makes no distinction between a worker’s entitlement to rest and the employer’s obligation to ensure maximum hours of working time. The entitlement to a rest break was therefore intended to be actively respected by employers. The EAT preferred the Muslove case and remitted this case back to the ET to consider if Mr Grange had been denied rest breaks.
What should you be doing now?
Where workloads fluctuate throughout the day, it may be in your interest to help workers to take their breaks by introducing a system so that breaks can be taken and cover is maintained. An example of this could be staggering times for breaks, or staggering worker start and finish times.
You should ensure that all workers are aware that they are entitled to their break, and if anyone is having difficulty taking their break then you should see if you are able to make arrangements to help them take this break.
Workers cannot be forced to take a break. You should however ensure you are helping them to take at least their statutory minimum break if they would like to.
What does this mean for you or your business?
If your employees work shifts which are longer than 6 hours then they will be entitled to a 20-minute rest break. A break is not a break if it is taken at the start or end of the shift. The employee must know at the start of the break that the break will be uninterrupted, at least 20 minutes long and that it may be taken away from their workstation. You would be wise to assess whether any of your current working practices deter workers from taking rest breaks.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.