Do employees have to ask for breaks?

Alan Price – CEO at BrightHR

December 05 2016

The Working Time Regulations 1998 give all workers the right to an uninterrupted 20 minutes rest break if they work for more than six hours that day. There are different rest entitlements for young workers. The break doesn’t have to be paid but must occur during the working day, rather than at the beginning or end of work. Workers who don’t receive their rights can make a claim to an employment tribunal. A previous case in 2008 found that a worker had to have an actual refusal of a request to take a break in order to make the employer liable under the Regulations. The Employment Appeal Tribunal have recently considered another case regarding this. In this case, the employee was responsible for monitoring and regulating the frequency of the employer’s bus services. At the start of his employment he worked for 8.5 hours a day with a 30 minute lunch break. He found it difficult to take the break because of the nature and responsiveness required by the role. About a year later, the employer amended his working hours; reducing the shift to eight hours with his break being taken at the end of his working day. The employee raised a grievance and made a claim to tribunal that his employer had refused to allow him his legal breaks. The Employment Tribunal decided that the employer had not breached the law because the employee had not asked for his rest break. As he had not asked for the right, the right could not be refused. The Employment Appeal Tribunal overturned this decision. They decided that an employer is refusing the entitlement to a break if they put in place working arrangements that fail to allow for the break. There are now two conflicting Employment Appeal Tribunal cases on this area. However, this case does make it clear that employers should ensure they are not arranging the working day to avoid giving staff breaks, force employers to miss breaks or make them feel that this is a requirement of their work. If there is a concern that staff are not taking their required breaks, either because they feel they can’t or shouldn’t, employers should proactively remind staff about their right to take breaks, that these should be breaks from doing work and also to speak with them if they feel they cannot take time to have these. So long as employers are affording the employee the right to take their breaks, they have met their legal requirements to allow employees a rest break. Employers can’t force unwilling employees to take a break but they must ensure they have the opportunity to take it.

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