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Employee Not Required to Ask for a Rest Break Before Claiming to have been Refused a Rest Break

An Employment Appeal Tribunal (EAT) has decided that an employee is not required to ask for a rest break before claiming to have been refused a rest break.

Where a worker's daily working time is more than six hours, he is entitled to a rest break of 20 minutes under Regulation 12(1) of Working Time Regulations 1998 (WTR).

Where a worker is refused this right, he can bring a claim in the Employment Tribunal under Regulation 30 WTR.

In Grange v Abellio London the Claimant was contracted to work an eight and a half hour shift, which included a half hour break for lunch. He was told that, instead, he should work for eight hours without a break, and leave early.

The Claimant made a claim that he had been refused a rest break, but the Employment Tribunal held that he had never asked for a rest break and therefore he had never been refused one. The EAT overturned the decision on the grounds that the instruction to work without a rest break could be construed as a refusal, without an explicit request.

The EAT disapproved the reasoning of the leading authority of Miles v Linkage Community Trust, and preferred instead the conclusion from the unreported case of Scottish Ambulance Service v Truslove.

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. The EAT made clear that employers must proactively ensure that working arrangements allow for workers to take breaks.

In reality, many workers in high-pressured environments do not take rest breaks and will not complain that the right has been denied to them. Their perception may be that it is their choice, given their heavy workload, not to take a break. However, an employer will not be able to use that as a defence if the employee later complains and seeks to enforce their rights.

 

This bulletin is for general guidance purposes only and should not be used for any other purpose.

 

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