Good morning , welcome back to our weekly Case Law Update. Last week we looked at the role decision matrixes in disciplinary procedures.  This week we will be looking at working time and rest breaks. A rather topical issue given that Sainsbury’s, a supermarket chain that is open on Christmas Eve and Boxing Day, has recently released a Christmas advert about how the best gift you can give your family is quality time with them. Oh the irony!

Working time in the UK is governed by the Working Time Regulations 1998, which itself is an implementation of the Working Time Directive. The Regulations apply to all workers (not just employees) and state, among other things, that:

– No working week should exceed 48 hours (unless the employee has opted out)

– Employees have the right to 28 days paid annual leave (including Bank Holidays)

– Employees have the right to a minimum rest break of 20 minutes during any shift that exceeds 6 hours

This week’s case will be focusing on the latter of these three points and asks:

Does an employee need to ask for a rest break before they can begin a claim for being refused rest breaks?

Mr Grange, the Claimant, was initially employed by Abellio London, the Respondent, as a bus driver. The Claimant worked an 8 ½ hour shift, being paid for 8 hours and taking 30 minutes as an unpaid lunch break. The Claimant was later promoted to Roadside Relief Controller, a role that required him to monitor, adjust and regulate bus services to accommodate road conditions and traffic etc.

In the Claimant’s previous role he had a set shift pattern which meant he had no difficulty taking his 30 minute rest break. However, in his Relief Controller role, the Claimant was regularly unable to take his rest break.

The Respondent wrote to the Claimant and confirmed that his shift had been shortened from 8 ½ hours to 8. The idea being that the Claimant would forgo his break in order to leave earlier. After some time the Claimant lodged a grievance stating that he had been refused a rest break. However, prior to raising the grievance, the Claimant had never requested a break.

The Respondent refused the Claimant’s grievance and the Claimant brought a claim before the Tribunal. The ET rejected the claim. It held, following the decision in a prior case, that as the Claimant had not requested a break, the Respondent had not breached his right to a break under the Working Time Regulations because they had not refused a request for a rest break.

The Claimant appealed and the EAT allowed the appeal. It held that the Respondent’s instruction to work an 8 hour shift without a break could be viewed as a refusal without a specific request being made.

The take away point:

No, if an employee has been told that there will be no rest break during a shift (that lasts more than 6 hours), then they do not need to be refused a request to take a break before they can begin litigation.

This case goes against the decision of Miles v Linkage Community Trust, the previous case the ET relied on, and means employers can now potentially refuse rest breaks by proxy, or by accident, if the employee fails to request a break.

For more cases on working time click here.