Tea Break test: why employers need to allow for rest breaks even if employees don't ask

You don’t ask you don’t get? Not quite when it comes to tea breaks. The failure to allow for rest breaks under the Working Time Regulations 1998 (“WTR”) is a ‘refusal’ even if no request has been made.

A case in point

In the recent case of Grange v Abellio London Ltd, the Employment Appeal Tribunal (EAT) held that a claim relating to an employer’s failure to make provision for rest breaks under WTR can be brought even if the worker does not expressly request the breaks.

Mr Grange brought a claim to the Employment Tribunal (ET) on the grounds of Regulation 30 of WTR, that Abellio London Ltd had refused to permit him to exercise his right to a 20-minute rest break under Regulation 12(1) WTR. Workers are entitled to this 20-minute break if the working day is six hours or more.

The ET dismissed had originally dismissed Mr Grange’s claim on the basis that there had been no refusal of a rest break relying on precedent that a refusal had to be a distinct act in response to a direct request to exercise his or her right. Grange had made no such request. According to the ET, the fact that the employer may have instructed him to work without a break was not in itself enough to amount to a refusal, following the previous Employment Appeal Tribunal decision in Miles v Linkage Community Trust Ltd.

Appeal rules in employee’s favour

On appeal, after examining conflicting case law, the EAT turned to the wording of the EU Working Time Directive. In their view, the entitlement to rest breaks under the Directive is intended to be actively respected by employers for the protection of workers and health and safety.

Therefore, their interpretation of Regulation 30 was that the obligation is on the employer to afford the worker the entitlement to a rest break and that entitlement will be refused if it puts into place working arrangements that fail to allow the taking of such breaks.

Employers must take active steps to ensure that their working time arrangements enable workers to take requisite breaks. This does not mean that workers are forced to take breaks but it was provided that workers must be positively enabled to do so. The onus is therefore put on employers to make such arrangements, rather than employees to ask for their break entitlement.

Get in touch

For any advice regarding the above, do not hesitate to get in contact with a member of our employment team.