What constitutes a 'refusal' of a rest break by an employer?

Facts

Mr Grange was employed by Abellio as a relief roadside controller, known as SQS. His role was to monitor the arrival and departure times of bus services. His working time initially lasted eight and a half hours, the half hour being unpaid and treated as a lunch break although given the nature of the role, it was difficult to take that break. In recognition of practical difficulties in taking the break, from July 2012 the length of working day for all SQSs was changed to eight hours, the idea being that the employees would work without a break and finish half an hour earlier. This was communicated to staff at a meeting but did not constitute a workforce agreement.

In July 2014, Mr Grange submitted a grievance complaining that for 2 and half years he was forced to work without a meal break, which had impacted on his health. His grievance was rejected and he made a claim to an employment tribunal.

The employment tribunal dismissed his claim, following the case of Miles v Linkage Community Trust Ltd [2008] and Carter v Prestige Nursing Ltd [2012]. Both cases provided that the “refusal” to a break could only be constituted if there was a specific request to have a break in the first place.

Law

Regulation 12(1) of the Working Time Regulations 1998 provides that if “an adult worker's daily working time is more than six hours, he is entitled to a rest break”.
Under Regulation 30 “a worker may present a complaint to an employment tribunal that his employer has refused to permit him to exercise any right he has under … Regulation 12(1).”
Decision

The EAT disagreed with the decision of the employment tribunal. The EAT found that there was conflicting case law in this area and preferred the reasoning provided in the case of Scottish Ambulance Service v Truslove [2011], that an employer “cannot withdraw into a passive role and grant rest periods only to those workers who ask for them”. It went on to say that “it is required not merely that employers permit the taking of rest breaks … but … they proactively ensure working arrangements allow for workers to take those breaks”.

On the basis of the above the EAT remitted the case to the employment tribunal, to consider whether the right to rest breaks had been denied.

Comment

Aggie Salt, Solicitor in Lindsays Employment team comments:
“The EAT made it clear that the entitlement to “refuse” a rest break does not only apply to situations where an employee requested and was refused the rest break. The “refusal” can also mean putting working arrangements in place which fail to allow the taking of a 20 minute break, regardless of whether an employee requested a break or not. However, as long as the employer has taken active steps to enable the rest break by, for example, designating a lunch break, they will meet the obligation under Regulation 12(1).

“Although the employer cannot force an employee to take the rest break they must take positive steps to enable him to take the break.”