Most employers will be aware that under the Working Time Regulations 1998, a worker has the right to a minimum 20 minute unpaid rest break for each shift that lasts over six hours. Workers have the right to bring a claim in the Employment Tribunal if their employer “refuses” to allow them to take those rest breaks. Until recently there has however been conflicting case law about what amounts to a refusal. Does a worker simply have to be denied the opportunity to take a break (for one reason or another) or do they have to expressly request a break before such a denial can be construed as a refusal?
In 2008 the Employment Appeal Tribunal (EAT) confirmed that it considered that “refusal” should be given its dictionary definition which is “an act of refusing, a denial or a rejection of something demanded or offered“, which implied that the employee first had to actively seek to exercise the right before the employer could logically then refuse it (known as the “Miles” interpretation).
However, in 2011 the EAT rejected any suggestion that the employee was required to expressly request rest periods (the “Truslove” interpretation). This apparent contradiction led to a period of legal uncertainty due to the conflicting outcome of these cases.
The case of Grange v Abellio London Ltd has recently provided us with clarification of this issue. Here the Claimant argued that he had been prevented from taking his rest breaks over a two year period. He raised a grievance with his employer, which was ultimately rejected. He then brought a claim under Regulation 30 of the Working Time Regulations 1998, arguing that his employer had “refused to permit” him a 20 minute rest break despite him not having actively requested the rest breaks at the time. Despite the Claimant losing at the Employment Tribunal, the EAT overturned this decision and found that it preferred the Truslove interpretation on the basis that this would more closely accord with fundamental principles of the EU Working Time Directive on which the Working Time Regulations are based.
This case may prove to be a steep learning curve for employers. Whilst the Grange case does not go as far as saying that if a worker voluntarily works through a break (or part of it) there will be a breach of the Working Time Regulations, as a result of this legal shift, employers would be well advised to be more proactive in the way they manage the rest breaks taken by their workers to ensure that they are being given sufficient opportunity to take their minimum rest breaks.