Under the Working Time Regulations 1998, a worker is entitled to
an unpaid rest break of at least 20 minutes where a worker's
daily working time is more than six hours. If the right is refused,
the worker can bring a claim in the employment tribunal.
In Miles v Linkage Community Trust Ltd (2008) (followed
in Carter v Prestige Nursing Ltd (2012)), the EAT held
that in order to bring a claim, the worker must have asserted their
right, and the employer must then have refused to allow it.
However, the Advocate General gave guidance in the ECJ case of
Commission v United Kingdom (2006) which took a different
line, observing that an employer "cannot withdraw into a
passive role and grant rest periods only to those workers who ask
for them" but rather the employer has a "duty to
afford" them. The UK government's guidance to employers
regarding working time and rest breaks (which at the time said the
employer was not required to ensure that workers took their rest
breaks) was subsequently amended and the current guidance is to be
found here: it simply says that workers are
entitled to rest breaks but gives no guidance on employers'
obligations (or not) to ensure they are taken.
The Claimant's job required him to monitor the arrival and
departure times of buses. When he was first employed in 2009, his
working day was eight and a half hours, which included 30 unpaid
minutes for his lunch break. In practice, it was not easy for him
to take a break and from mid-July 2012, his working day was
shortened to eight hours, the intent (as was explained to employees
at a meeting at which the Claimant was not present) being that they
would not take a break during this time.
The Claimant worked an eight hour day until July 2014, when he
brought a grievance complaining that his health had been affected
by not having a lunch break. His grievance was rejected and he
brought a tribunal claim that he had been denied his right to a
rest break. The tribunal dismissed his claim (in accordance with
the reasoning in Miles and Carter above), holding there could be no
denial of a break since, without a request from him, the Respondent
could not have turned his request down.
The Claimant appealed to the EAT.
The EAT noted that, in addition to Miles and Carter,
there was another EAT case (Scottish Ambulance Service v
Truslove (2011) on this point, in which the reasoning in
Commission v UK was preferred. In Truslove, the
EAT had endorsed the approach in Commission v UK. It was
necessary to adopt a purposive approach in order to give effect to
the Working Time Directive and the approach in Truslove
was therefore to be preferred.
The Working Time Regulations do not require a worker to give his
or her employer notice of a wish to take a rest break, so the
regulations do not require an explicit refusal. Employers should
ensure that working arrangements permitted workers to take the rest
breaks to which they were entitled, and a failure to do so will be
considered a refusal of that right.
What to take away
The EAT is clear it is important to allow "real world"
protection of rights, not merely on paper. If the Claimant's
working arrangements did not permit him to take a lunch break, then
there is no need in its eyes for him to have expressly asked, and
been refused, in order to bring a claim.
The right to opt out of the Working Time Regulations, signed by
many, applies only to the 48 hours maximum working week and not to
workers' other statutory rights in those Regulations. As any
employee who has eaten breakfast, lunch and dinner at their desk
will attest, there are many workers who do not take the breaks to
which they are entitled. Both employers and workers may say that
this is a choice – however, unless employers' working
arrangements make clear that they are able to take a break if they
wish, there may be many workers who would have a claim if they
choose to make it.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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In SSE Generation Limited v Hochtief Solutions AG and another decided on 21st December 2016, the Court of Session in Scotland considered a contractor's potential design liability under the NEC Form of Contract.
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