Grange v Abellio London Ltd

Under regulation 12(1) of the Working Time Regulations 1998, an employer must actively respect a worker’s entitlement to an uninterrupted rest break. It is sufficient to establish a refusal for the employer to arrange work in a way that prevents the break being taken. The worker need not first request a break.

Workers cannot be forced to take rest breaks. Employers must, however, take active steps to ensure that working arrangements enable the statutory break to be taken. The construction adopted in Scottish Ambulance Service v Truslove was preferred to that in Miles v Linkage Community Trust Ltd.

The Claimant, a roadside controller, worked an eight-and-a-half-hour day before July 2012, with an unpaid half-hour lunch break. Thereafter, the Respondent expected or instructed roadside controllers to work eight hours without a break and finish earlier.

The Employment Tribunal, applying Miles v Linkage Community Trust Ltd, held that there had been no refusal because the Claimant had not requested a break and dismissed his claim under regulation 30 of the Working Time Regulations 1998. The appeal concerned whether an express request and refusal were required, having regard to the Working Time Directive.

1. Appeal allowed. The Employment Tribunal had erred in requiring both a request by the worker and an express refusal by the employer. Its decision was unsafe and was set aside.
2. The Working Time Regulations 1998 implement the Working Time Directive and must be construed consistently with its language and health and safety purpose. In Commission v UK, the Court of Justice rejected guidance suggesting that employers need only permit rest and need not ensure that workers could actually exercise the right.
3. The approach in Scottish Ambulance Service v Truslove was preferred to Miles v Linkage Community Trust Ltd. Regulation 12(1) gives a substantive entitlement to a rest break and does not make that entitlement conditional on prior notice or request, unlike the statutory annual-leave regime.
4. An employer refuses the entitlement for the purposes of regulation 30 where it puts in place working arrangements that fail to allow the worker to take an uninterrupted break of at least 20 minutes. Conversely, the employer meets its obligation if it takes active steps to ensure that the arrangements enable the break to be taken. The worker cannot be compelled to take it.
5. The case was remitted because the existing findings did not determine whether the arrangements before July 2012, the arrangements after the July 2012 email, or the later grievance amounted to a refusal under the correct legal approach. The parties were permitted to make written representations on disposal within 14 days.

• Employment Appeal Tribunal: allowed the appeal against the Employment Tribunal’s judgment sent on 3 August 2015 and remitted the matter for determination under the correct construction of the Working Time Regulations 1998.
• Employment Tribunal: dismissed the claim that the Respondent had unlawfully refused rest breaks.