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Right to rest break under WTR is infringed even where there has been no explicit request and refusal

In Grange v Abellio London Ltd the EAT considered the correct approach to determining whether a worker has been denied a rest break.

Background

Where a worker's daily working time is more than six hours, he is entitled to a rest break of 20 minutes (Regulation 12(1), Working Time Regulations 1998 (WTR)). Where a worker is refused this right, he can bring a claim in the employment tribunal (Regulation 30 WTR).

What amounts to a refusal was considered by the EAT in Miles v Linkage Community Trust Ltd [2008] IRLR 602. It was held that the language used in regulation 30(1) requires two positive steps: the assertion of the right and the refusal of permission to exercise it.

Therefore, the obligation was held to be triggered when there had been an actual refusal by an employer. Miles relies on a literal interpretation of refusal, namely a denial or rejection of something that has been demanded or offered.  Miles was approved in Carter v Prestige Nursing Ltd UKEAT/0014/12 where the EAT held that the word "refused" connotes a response rather than, for example, "mere inadvertence" (by the employer) to the statutory right.

The EAT acknowledged that this interpretation leaves a gap in the protection for workers in respect of their entitlement to rest, but was not prepared to depart from Miles, especially as its conclusion accords with the ordinary and natural meaning of the words used by the WTR.

The approach in Miles and Carter is at odds with the guidance given by the Advocate General in Commission v United Kingdom (Case C-484/04) [2006] ECR I-7471, a case in which the European Commission challenged the guidance in relation to rest breaks as being inconsistent with the requirements of the Working Time Directive since it did not make clear that employers should encourage the taking of breaks (see Legal update, AG finds that UK failed to implement Working Time Directive adequately).

As a result, the government guidance was amended to remove the suggestion that employers only had a passive role to play. For more information, see Practice note, Working Time Regulations: rest periods and rest breaks: Employers' responsibilities.

Facts

Mr Grange was employed by Abellio London Limited (Abellio) from 2009 in a role which required him to monitor the arrival and departure times of a bus service and to regulate the service. Initially, his working day lasted eight and a half hours, the half hour being unpaid and treated as a rest break. In reality, it could be difficult for him to take that break. From mid-July 2012, the length of the working day for those in Mr Grange' role changed to eight hours, the idea being that employees would work without a break and finish half an hour earlier. This was communicated to staff at a meeting (at which Mr Grange was not present), but this did not constitute a workforce agreement to exclude or modify the rest break.

In July 2014, Mr Grange submitted a grievance, complaining that for two and a half years he had been forced to work without a meal break, which had impacted on his health. The grievance was heard and eventually rejected. In the meantime, Mr Grange lodged a claim in the employment tribunal, claiming that he had been denied his entitlement to a rest break throughout different periods of his employment. An employment tribunal dismissed his claim, finding that he had not been denied his right since no actual request had been made and refused. The tribunal followed the approach set out in Miles and Carter, which required an explicit request to have been made and refused (see Background ). Mr Grange appealed to the EAT.

Decision

The EAT allowed the appeal and remitted the case for reconsideration in light of correct guidance. There were conflicting EAT decisions on the correct approach to determining whether rest rights had been denied under the WTR. Miles and Carter conflicted with Scottish Ambulance Service v Truslove UKEAT/0028/11, a case which (though on a different point) approved the observations made in Commission v UK that an employer "cannot withdraw into a passive role and grant rest periods only to those workers who ask for them" but rather the employer has a "duty to afford" them.

It was necessary to adopt a purposive approach in order to give effect to the WTD and the approach in Truslove was therefore to be preferred. The guidance given in Commission v UK C-484/04 [2006] IRLR 888 was helpful and was expressly endorsed in Truslove (though not in Miles).

While workers could not be forced to take rest breaks, employers needed to proactively ensure that working arrangements allowed for workers to take those breaks. The entitlement to a rest break will be refused if the employer puts in place working arrangements that fail to allow the taking of 20 minute rest breaks. Adopting the Truslove approach enabled a "real world" protection of rights to rest breaks rather than a notional one.

The drafting of Regulation 12 is expressed simply, as an entitlement to a rest break. Regulation 30 gives a worker a right to enforce a rest break where it has been "refused", but this does not mean that regulation 12 requires an explicit refusal and request before it can be enjoyed. Regulation 12 is not drafted in such a way that it is contingent upon a requirement to give notice (as is the case in respect of the right to take annual leave). By interpreting the right to a rest break as requiring a request to have been made, Miles added a condition that was not part of the relevant regulations.

The case was remitted to consider whether rest breaks had been denied in respect of three different periods:

Where there had been a half hour lunch break built into the working day but Mr Abellio had in fact been too busy to take it.
Where an expectation was communicated that Mr Grange would work through an eight hour day without a break but could "take a meal break if he wanted one". In the period after Mr Grange had lodged a grievance but before it had been determined.

Comment

There are compelling reasons given in this judgment as to why the conflict in the EAT authorities should be resolved in favour of Truslove. Miles did not adopt a purposive approach or take account of the UK Commission case. The EAT makes clear that employers must proactively ensure that working arrangements allow for workers to take breaks.

In reality, many workers in high-pressured environments do not take rest breaks and will not complain that the right has been denied to them. Their perception may be that it is their choice, given their heavy workload, not to take a break. However, an employer will not be able to use that as a defence if the employee later complains and seeks to enforce their rights.

Case

Grange v Abellio London Ltd [2016] UKEAT 0130/16/1611 (16 November 2016). (Bailii)

This article was originally published on www.practicallaw.com on 17 November 2016 and is reproduced with the permission of Thomson Reuters.

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