12 December 2016

Rest breaks and the long hours culture: what must employers do?

This article was written by Tamsin Rickard, Professional Support Lawyer.

Working time rules receive plenty of media attention, especially the vexed topic of holiday pay and the limits on weekly working time.

A right that receives less air time is rest breaks: employees who work for six hours or longer are entitled to take a rest break of 20 minutes. Employers who “refuse” to provide rest breaks will be in breach of the Working Time Regulations.

A recent case has cast light on what it means to “refuse”: does this have to involve an employer turning down a specific request, or can employers be in breach of the Regulations by failing to arrange for or even enforce rest breaks?

In the recent case of Grange v Abellio, Mr Grange’s role, supervising the comings and goings of buses over a period of several hours in a depot, made it difficult for him to take rest breaks. He claimed for breach of the rest break provisions of the Working Time Regulations, even though he had never actively requested a rest break and so, arguably, one had never been refused. The Employment Appeal Tribunal has confirmed (clarifying some conflicting caselaw) that there is a positive obligation upon employers to arrange for rest breaks - and that failure to do so is a breach of the Regulations even where the employee has not requested them. An Employment Tribunal must now decide whether or not, on the facts, the employer made the necessary arrangements for rest breaks.

What does this mean for employers?

This raises a very live issue in some sectors, where it is difficult for rest breaks to occur in practice: in demanding jobs where rapid responses are constantly required, such as on a trading floor, or where staff are required to work alone, for example in certain types of retail businesses which require numerous small branches.

The Regulations make specific provision where rest breaks aren't workable in practice: in certain limited circumstances, where a worker is required to work during a period which would otherwise have been a rest break, the employer must wherever possible allow the worker to take an equivalent period of compensatory rest within a reasonable time. The right to rest breaks can also be varied by way of a workforce agreement.

However, employers who do not monitor and enforce rest breaks or compensatory rest for their staff are at risk of legal claims. A previous caselaw decision has confirmed that such claims do not necessarily entail an award of compensation, as there is no entitlement to be paid for rest breaks. However, the low financial value of such claims will not provide comfort to all businesses. In practice, staff who seek to enforce their right to take rest breaks could create other challenges for management: a Tribunal could make a declaration of their entitlement to rest breaks, putting pressure on employers to restructure staffing arrangements across the board with potentially significant additional costs.

Since this right derives from the Working Time Directive, it remains to be seen whether it will be a target for review post Brexit.

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