An Employment Appeal Tribunal has recently found that an employer effectively “refuses” to give an employee rest breaks if working hours are so arranged so as not provide for a break.

Previous case law from the Employment Appeal Tribunal said that, in order for a right to be refused, the employee must first ask for it. The present case found the exact opposite and ultimately this means that it will take a Court of Appeal decision to clarify an employer’s obligations.

However, this case is likely to be the one preferred by future tribunals. So, it means that employers should take a more proactive view towards allocating time for rest breaks. The judgment emphasises that employers should not put arrangements in place which deny employees their breaks including minimum 20 minute break where working time is more than 6 hours. Breaks cannot be ‘taken’ at the end of the working day.

What happened in the case?
In Grange v Abellio London, the employee worked as a Relief Roadside Controller who was responsible for monitoring and regulating the frequency of the employer’s bus services. At first, he worked for 8.5 hours per day with a 30 minute unpaid lunch break but this was changed to a working day of 8 hours, but the employee could leave 30 minutes earlier. The employee made a claim to the Employment Tribunal that Abellio had refused to allow him to take the breaks he is entitled to under the Working Time Regulations 1998.

The Employment Tribunal decided that Abellio had not breached the law: Grange had not asked for a rest break and he must first do this in order for it to be “refused”.

The Employment Appeal Tribunal overturned this by saying that an employee does not need to ask for a break in order for the employer to be deemed as refusing it. Therefore, Abellio had breached the Regulations by refusing Grange his rights under the Regulations.

Lead Employment Law Business Partner, Diyana Bell, said: “The Working Time Regulations 1998 are part employment law and part health and safety law. Because of this, Employment Tribunals look to strictly preserve an employee’s right to time off and rest periods, as in seen in this case.”