Until this case there were conflicting decisions on whether a
worker could complain of being denied a rest break only if he or
she has made an explicit request for a break. The EAT resolved the
conflict in the worker's favour and held that the way the
working day is arranged can have the effect of denying the worker
the right to a rest. Although the employee did not complain for two
and half years, the employer had a responsibility to make sure that
employees are able to take their breaks. As the denial of a rest
break can lead to a claim for compensation, employers should
proactively monitor their working practices and make sure that
working arrangements do not in practice make it impossible for
workers to take breaks.
Where a worker's daily working time is six hours or more the
worker is entitled under the Working Time Regulations to a break of
at least 20 minutes. Mr Grange was employed by Abellio London
Limited from 2009. He initially had responsibility for monitoring
the arrival and departure times of a bus service and generally
managing it. He had a working day of eight and a half hours of
which half an hour was unpaid and treated as a rest break, although
in practice he had difficulty taking the break. From July 2012 his
working hours (and those of others in a similar role) reduced to
eight hours, on the understanding that they would work without a
break and finish half an hour earlier. This was communicated to
staff at a meeting although Mr Grange was not present.
In July 2014, Mr Grange lodged a grievance and complained that
having had to work without a break for two and a half years had
negatively affected his health. The grievance was not upheld. In
the meantime he brought a claim in the employment tribunal,
claiming that he had been denied his entitlement to a rest break at
various times during his employment. Following earlier case law,
the Tribunal rejected his claim on the basis that he had not made a
request for a break and therefore the employer had never actually
refused to give him one.
The EAT said that that was the wrong approach. It relied on a
judgment of the European Court in which the Court said that
employers '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. It sent the claim
back to the tribunal to look at the facts again in light of that
Employers may have been lulled into a false sense of security by
the earlier case law and need to be aware of the risk of claims if
they arrange working hours in a way that explicitly or implicitly
prevents employees from taking a short break during the working
day. They should also bolster their position by positively
encouraging employees to take breaks, for example by including a
clear policy in their staff handbooks and training managers to
raise the issue with employees who appear to be working long hours
without a break.
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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