The Working Time Regulations 1998 (the Regulations), which implement the requirements of the 1993 EC Working Time Directive, introduced restrictions on the number of hours worked by employees and workers together with a right to rest breaks, rest periods and holidays. This post is concerned with the right to rest breaks during the working day.

Who is covered by the Regulations?

The Regulations apply to “workers”. The definition of worker includes employees, but also extends to other workers who are not independent self-employed contractors.

The right to rest breaks

Under the Regulations, subject to certain exceptions, adult workers whose daily working time is more than 6 hours are entitled to a rest break of not less than 20 minutes. This break must be uninterrupted and the worker is entitled to spend it away from his workstation if he has one. (Young workers have greater entitlements to rest breaks than adult workers). It is possible to modify this entitlement by an appropriately negotiated collective or workforce agreement.

Must employers ensure that workers take their rest breaks?

Whilst employers are not required to force workers to take their rest breaks, they must ensure that workers can take them. Where a worker is denied this right, he can bring a claim in the employment tribunal and may be awarded compensation.

The UK was challenged by the European Commission in the ECJ because Government guidance stated that whilst employers must ensure that workers can take their rest breaks, they are not required to ensure that they take them. The ECJ accepted that employers do not have to force their workers to take rest breaks but considered that the guidance encouraged a practice of non-compliance with the EC Directive. The wording of the guidance was subsequently changed but a recent case has looked at the question of whether an employer can be found liable if there is no express request and refusal of a rest break.

Is the right to a rest break denied where there is no express request and refusal?

In a recent case, the Employment Appeal Tribunal (EAT) allowed an appeal against the tribunal’s decision that a worker had not been denied the right to a rest break because there was no explicit request and refusal.

In the case, the claimant was employed by a public transport company from 2009 in a role which required him to monitor the arrival and departure times of a bus service and to regulate the service. Initially, his working day lasted eight and a half hours, the half hour being unpaid and treated as a rest break. In reality, it could be difficult for him to take this break. During 2012, the length of the working day for those in his role was reduced to eight hours, the idea being that employees would work without a break and finish half an hour earlier. This change was communicated to staff at a meeting, but this did not constitute a workforce agreement to modify the rest break.

Following an unsuccessful grievance, the claimant lodged a claim in the employment tribunal, claiming that he had been denied his entitlement to a rest break throughout different periods of his employment. An employment tribunal dismissed his claim, finding that he had not been denied his right since no actual request had been made and refused.

On appeal, the EAT held that the tribunal had been wrong in its approach as to whether or not a worker had been denied his right to a rest break. In deciding that an explicit request had to have been made and denied, the tribunal had followed earlier EAT authorities which should not be relied on.

While workers cannot be forced to take rest breaks, employers need to ensure proactively that the working arrangements allow for workers to take those breaks, regardless of whether they have been expressly requested. The entitlement to a rest break is effectively refused if the employer puts in place working arrangements that fail to allow the taking of 20 minute rest breaks.

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