In Grange v Abellio London, The Employment Appeal Tribunal (EAT) found that employers are obliged to ensure that their employees are receiving the rest breaks they are lawfully entitled to. By statute, employees and workers are entitled to a 20 minute break if they work for longer than 6 hours under and in terms of regulation 12 of the Working Time Regulations (WTR). Many employees may be entitled to a longer break than this in terms of their contract of employment.
The decisions of the courts on this issue had previously been in conflict, with some concluding the legislation required the employee to have requested and been refused a break before there was a breach of their rights, whereas others found there would be such a breach even where no express request had been made. The decision in this case provides clarity on matters.
In this case, the Claimant was contractually entitled to a 30 minute break in any eight hour shift, but the nature of his job meant it was often difficult to take that break. The employer decided that employees should work without a break mid-shift, but finish their duties half an hour earlier than their contracted finishing time. Mr Grange brought a claim to the Employment Tribunal under the WTR on the basis he felt such an arrangement was a breach of his rights.
The employer argued that as Mr Grange had not requested a break during employment prior to bringing his claim, his rights had not been infringed as they had not refused Mr Grange his right to take a break. The Employment Tribunal at first instance agreed with this but Mr Grange appealed.
The EAT found that the legislation does not specifically require an employee to request a break and that the absence of an express request to take a break did not remove a worker’s right to take a rest break. Accordingly, the case confirms that employers have a positive obligation to ensure that their workers get appropriate breaks. The EAT found that where the employer implements working arrangements which prevent the taking of rest breaks, an employee will be able to bring a claim for the infringement of their rights.
Interestingly, a similar case recently decided in the Sheriff Court looked at a similar issue, but from a contractual perspective (rather than the statutory rights conferred by the WTR). In Dawson v Carr Gomm, the employee was a carer who was required to work 8 hour shifts providing home care and support to a man suffering from paranoid schizophrenia (JW). The employee’s contract entitled him to take a 30 minute break, but he was not allowed to leave the house and was expressly instructed to take the break in JW’s kitchen, with JW to be told not to enter his kitchen during that time. In practice, the nature of JW’s illness meant that he frequently required support and Mr Dawon’s break was interrupted or cut short. He argued that he effectively was not receiving his rest break entitlement. The Sheriff considered the same authority which was put before the EAT in the Grange v Abellio case, and held that the employer had implemented arrangements which prevented Mr Dawson from taking his rest break and therefore they were in breach of contract.
These decisions make sense, as employees and workers have the statutory right to a rest break and it is arguably unfair for employers to avoid liability simply because they did not explicitly refuse a specific request. In particular, employees may be put under pressure or feel a sense of duty to carry on without a break due to the nature of their job. While an employee can choose not to take breaks, a presumption that they are choosing not to may not be a defence for employers. If there is an awareness that an employee is not taking breaks due to their working arrangements or workload, the above decisions indicate that it would be wise for employers to be proactive in ensuring the opportunity is given.
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