Rest breaks under the Working Time Regulations 1998
Wednesday 30th November 2016
The EAT has held in Grange v Abellio London Limited that an employee may bring a claim alleging that their employer has “refused” to permit rest breaks under the WTR, even if they have not been expressly requested.
Mr Grange was initially employed by Abellio as a bus driver and his rest breaks were scheduled at fixed times each day. In June 2011, Mr Grange began working as a Relief Roadside Controller (“RRC”), monitoring the arrival and departure times of the bus service, adjusting the frequency where necessary to reflect the traffic conditions.
Initially Mr Grange’s shift lasted 8½ hours and included a 30 minute lunch break. However, in practice it was often difficult for RRCs to take a lunch break. Abellio therefore informed the RRCs that their working day would be reduced to 8 hours with the expectation that they would work without a break and finish 30 minutes earlier.
In July 2014, Mr Grange submitted a claim alleging that Abellio had refused to permit him to exercise his right to a 20 minute rest break under the WTR. The ET rejected Mr Grange’s claim, following the EAT’s reasoning in Miles v Linkage Community Trust Ltd, which required that a “refusal” for these purposes be a distinct act in response to an attempt to exercise the right to a rest break. The ET considered that Mr Grange had not attempted to exercise his right to take daily rest breaks following the change in hours and that therefore there had been no “refusal”. Mr Grange appealed to the EAT.
The EAT recognised there was conflicting case law on this issue, referring to another EAT decision in Scottish Ambulance Service v Truslove. The EAT considered the purpose of the EU Working Time Directive (implemented by the WTR) and the ECJ’s decision in Commission of the European Communities v UK, which held that employers may not adopt a passive role and grant rest periods only to those who ask for them. The EAT therefore held that an employer refuses WTR breaks if working arrangements fail to allow for them to be taken. The case was remitted to the ET to be reconsidered.
All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.