Background

Under the Regulations a worker is entitled to an uninterrupted rest break of 20 minutes if his or her daily working time exceeds 6 hours.

In this case, Mr Grange was employed by Abellio as a Relief Roadside Controller, responsible for monitoring and regulating the company’s bus services. When he commenced the role his working day lasted for eight and a half hours, with an unpaid rest break of 30 minutes. As there were often practical difficulties in fitting a break into his working day, in 2012 Mr Grange’s working hours were changed to eight hours per day, with no unpaid rest break. and the working day finished 30 minutes earlier as a result.

In 2014, Mr Grange raised a grievance, complaining that he had been forced to work without a break and that this had had an adverse impact on his health. Abellio rejected his grievance and Mr Grange brought a claim in the Employment Tribunal, arguing that Abellio had refused to permit him to exercise his right under the Regulations to a 20-minute rest break.

The ET rejected his claim on the basis that Abellio had not actually “refused” Mr Grange a rest break, as he had never attempted to exercise that right until he raised the grievance some two and a half years after the new working hours were introduced. The ET followed an earlier decision of the EAT that a refusal of a rest break had to be a “distinct act” in response to the worker’s attempt to exercise that right.

Mr Grange appealed to the EAT.

The EAT decision

The EAT overturned the ET decision and ruled that Abellio was in breach of the Regulations by failing to provide a 20 minute rest break.

The EAT noted that there was a conflict in the earlier case law, and chose to follow a decision made by the Scottish EAT in a different caseand rejected the employer’s argument that the employee was required expressly to request daily rest periods. The EAT ruled that this was a common sense construction of the Regulations which reflected the intention of the European Working Time Directive from which they are derived. The EAT said that employers must take “active steps” to ensure working arrangements that enable the worker to take the requisite rest break. Whilst workers cannot be forced actually to take their rest breaks, they must be “positively enabled” to do so.

The case was remitted to the ET which will now determine whether the fact that the workers were too busy to take their rest breaks prior to 2012 amounted to a failure to allow Mr Grange to exercise his right to do so; and whether he was denied his right to a rest break following the introduction of the new working pattern in 2012.

What to take away

This case will be of particular interest to employers across the health, social care and social housing sectors where employees frequently are required to work long shifts and where it is often challenging for them to take a scheduled rest break due to the need to provide continuity of care. Whilst employers will be reassured that there is no obligation to ensure that workers are taking the required rest breaks where they choose not to do so, they should review working arrangements to ensure measures are in place to enable workers to take such breaks should they wish to do so.

For further information on how this issue might affect your organisation, please contact Rachel Luddem, Chloe Edwards or Andrew Uttley.