No, according to the recent decision by the Employment Appeal Tribunal in Grange v Abellio London Ltd. Here the EAT confirmed that there was no need to specifically request a break under the Working Time Regulations 1998 (“WTR”) in order to bring a complaint to a Tribunal that it had been denied.
Under the WTR, an employer has a duty to afford a worker the right to a rest, regardless of whether it has been requested. There can be a denial of the right to a rest through the arrangement of the working day.
Where a worker's daily working time is more than six hours, they are entitled to a rest break of 20 minutes under the WTR. Where a worker is refused this right, they can bring a claim in the employment tribunal. Where a complaint is well-founded, the tribunal must make a declaration to that effect and may make an award of such compensation as is just and equitable in all the circumstances, having regard to the employer's default and any loss sustained by the worker as a result
In this case, Mr Grange was employed by Abellio London Limited. Initially, his working day lasted eight and a half hours, the half hour being unpaid and treated as a rest break. In reality, due to the nature of his role which involved monitoring buses, it could be difficult for him to take that break. During the course of his employment the length of the working day changed to eight hours with Mr Grange being able to finish half an hour earlier.
Mr Grange submitted a grievance, complaining that he had been forced to work without a meal break, which had impacted on his health. The grievance was heard and eventually rejected. In the meantime, Mr Grange lodged a claim in the employment tribunal, claiming that he had been denied his entitlement to a rest break throughout different periods of his employment. An employment tribunal dismissed his claim, finding that he had not been denied his right since no actual request had been made and refused.
However, the EAT reasoned that while workers could not be forced to take rest breaks, employers needed to proactively ensure that working arrangements allowed for workers to take those breaks. The entitlement to a rest break will be refused if the employer puts in place working arrangements that fail to facilitate the taking of 20 minute rest breaks.
The WTR are often viewed by employers as incompatible with the day to day realities of business requirements. However, it is important that Employers are aware of the rights of employees to take rest breaks and the potential of a claim if they do not proactively encourage workers to take these breaks.
If you need any help with interpreting the WTR in line with your business requirements, please contact a member of our Employment Team.