In Grange v Abellio London Ltd, the EAT has held that a claim for ‘refusal’ to permit rest breaks under the Working Time Regulations 1998 can be brought where the employer fails to make provision for such breaks, even if the worker does not expressly request them. Employers must take active steps to ensure that their working arrangements enable workers to take the requisite rest breaks: workers cannot be forced to take rest breaks but they are to be positively enabled to do so.
G works for AL Ltd as a ‘Relief Roadside Controller’ (RRC), which involves regulating and monitoring bus services. As was the case for all RRCs, his working day initially lasted eight and a half hours, which was meant to include a half-hour lunch break. That break was, however, often difficult to fit in given the busy work schedule. In July 2012, AL Ltd therefore decided to reduce the RRCs’ working day to eight hours so that they would work without a break and finish half an hour earlier. In July 2014, G submitted a grievance complaining that for two and a half years, he had been forced to work without a break. When his grievance was rejected, he complained to an employment tribunal, pursuant to Reg 30 of the Working Time Regulations 1998 (WTR), that AL Ltd had refused to permit him to exercise his right to a 20-minute rest break under Reg 12(1) WTR (which applies where the working day is longer than six hours).
The tribunal rejected G’s claim on the basis that there had been no ‘refusal’ to permit the exercise of that right, as required by Reg 30. According to the EAT in Miles v Linkage Community Trust Ltd (Brief 857), a ‘refusal’ for these purposes had to be a distinct act, in response to a worker’s attempt to exercise his or her right. G had made no request to take daily rest breaks following the change in hours – i.e. had made no attempt to exercise his right. The fact that AL Ltd may (at worst) have instructed him to work without a break could not in itself amount to a refusal of the right. Before the change in 2012, G had been free to take a half-hour break as and when convenient, even though this might have been difficult to fit in, so again there was no ‘refusal’. G took issue with the finding that there needed to be an express refusal on the part of AL Ltd, and appealed to the EAT.
The Appeal Tribunal took the view that there was conflicting case law on the point (albeit they concerned different provisions under the WTR). In Miles, which concerned compensation for failure to provide ‘compensatory rest’ under Reg 24 WTR, the EAT considered that ‘refusal’ should be given its dictionary definition, i.e. ‘an act of refusing, a denial or a rejection of something demanded or offered’, meaning that the employee first had to seek to exercise the right, and the employer then had to refuse it. By contrast, in Scottish Ambulance Service v Truslove EATS 0028/11, which concerned the time limit for claiming breach of the entitlement to daily rest periods under Reg 10 WTR, the EAT rejected any suggestion that the employee was required to expressly request those periods.
Allowing that the existing case law provides for alternative approaches, the EAT turned to the language and purpose of the EU Working Time Directive (No.2003/88) (which the WTR are designed to implement). In its view, it was clear from the ECJ’s decision in Commission of the European Communities v United Kingdom (Brief 814) that the entitlement to rest breaks under the Directive is intended to be actively respected by employers for the protection of workers’ health and safety. In light of this, and taking a commonsense construction to Reg 30(1), the EAT considered that the approach in Truslove was to be preferred – the employer has an obligation to afford the worker the entitlement to take a rest break; and that entitlement will be ‘refused’ if it puts into place working arrangements that fail to allow the taking of such breaks.
The EAT therefore allowed G’s appeal and remitted the case to the employment tribunal to decide whether the fact that many RRCs were simply too busy to take a break prior to July 2012 amounted to a failure to allow G to exercise his entitlement; and whether he was in fact denied his entitlement after July 2012.
Report Thomson Reuters