R&R – what the Working Time Regulations say

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The Working Time Regulations 1998 (WTR) provide for a right for workers to take a 20-minute rest break where the working day is longer than six hours. The WTR enable a worker to bring a claim if an employer has refused to allow the exercise of the right to a rest break. In Grange v. Abellio London Ltd 2016 UKEAT 0130/16/1611 the Employment Appeal Tribunal (EAT) had to decide if Mr Grange's employer had refused his entitlement to take a rest break.

Mr Grange worked for Abellio London Ltd (Abellio) as a relief roadside controller (RRC). His working day was eight and a half hours. This was meant to include a half hour lunch break. However, Mr Grange was often too busy to be able to take his lunch break. In 2012, Abellio decided to address this by reducing the working day for all RRCs to eight hours only, and asking them to work through without a break.

In 2014 Mr Grange brought a grievance that since 2012 his employer had made him work without a break. His grievance was not upheld, and so Mr Grange brought a claim to an Employment Tribunal that Abellio had refused to allow him to exercise his right to a 20-minute rest break.

The Employment Tribunal focused on the meaning of the word "refusal". It referred to previous case law from the EAT which had held that a "refusal" was a distinct act in response to a positive act by a worker. The Employment Tribunal found Mr Grange had not committed a positive act – he had not made a request to take a break when the working day changed to eight hours. Before 2012 Mr Grange was free to take a break. Despite it being difficult to find time, Abellio never refused it.

Mr Grange did not accept there needed to be an express refusal. He appealed to the EAT. The EAT considered the case law relied upon by the Employment Tribunal and a second case which found an employee was not required to expressly ask for a rest break. Due to the conflict, the EAT studied the words of the EU Working Time Directive, which the WTR implement in the UK. It came to a conclusion that the right Directive intends a rest break to be actively respected by employers for the protection of workers' health and safety. Therefore, an employer should afford the worker the entitlement to take a rest break, and that an entitlement would be "refused" if the employer put into place working arrangements that fail to allow a break to be taken.

The EAT allowed Mr Grange's appeal and sent the case back to the Employment Tribunal. The Tribunal is to decide if Abellio put in place working arrangements that failed to allow workers to take rest breaks.

The case acts as a reminder to employers of the importance of recognising a worker's entitlements under the WTR, even if an employee does not kick up a fuss about the same. Looking to the future, the WTR legislation stems from the EU, meaning that in theory, the UK's departure from the EU would allow the UK to repeal or amend the WTR. However, it is unlikely that Brexit would lead to a wholesale overhaul of the legislation.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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