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
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
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
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.
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