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Employers have an active duty to ensure rest breaks are taken

In Grange v Abellio London Ltd, Grange (G) worked an 8.5 hour working day, with a half hour unpaid lunch break.  The employer sent G an email saying that in future he should work 8 hours straight, without the half hour break, but then leave earlier than he done before. After 2 years working under the new arrangement, G raised a grievance stating that the lack of a break had caused a decline in his health. His grievance was not upheld.

An ET rejected G’s complaint that he had been denied his entitlement to a 20-minute uninterrupted rest break under the Working Time Regulations 1998 (WTR). The ET considered it had to follow the EAT’s decision in Miles v Linkage Community Trust Ltd, i.e. there had to be an actual refusal of a request to exercise the right to a rest break to give rise to a legal liability. The ET accepted G’s grievance was effectively a request for daily rest breaks as he was not happy working an 8 shift without a break. But he had never made a request before the grievance and the employer had never actually refused it, their position being that breaks could be taken as and when, but 30 minutes could not normally be taken in one go.

The EAT upheld G’s appeal. While there were conflicting decisions in the EAT as to whether had to be an actual request for a break and a refusal before the WTR was breached, the ECJ had made it clear that it is for the employer actively to see to it that rest breaks are observed. Adopting that approach, the EAT’s decision in Scottish Ambulance Service v Truslove was to be preferred to Miles, meaning that the employer has duty to afford the worker the entitlement to take a rest break and therefore the entitlement will be ‘refused’ by the employer if it puts into place working arrangements that fail to allow the taking of 20-minute rest breaks.

This ruling sends out the clear message that employers must ensure that the breaks to which workers are legally entitled are factored in to work schedules and that rest breaks are actually taken.

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 The aim of this update is to provide summary information and comment on the subject areas covered. In particular, where employment tribunal and appellate court cases are reported, the information does not set out all of the facts, the legal arguments presented by the parties and the judgments made in every aspect of the case. Click on the links provided to access full details. If no link is provided, contact us for further details.  Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.

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