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Employers Must Be Proactive to Ensure Workers Get Proper Breaks
Except in certain circumstances, an adult worker whose daily working time is more than six hours is entitled to a 20-minute uninterrupted rest break as laid down by Regulation 12(1) of the Working Time Regulations 1998 (WTR). In an important test case concerning a bus driver who claimed to have been forced to work eight-hour shifts without a break, the Employment Appeal Tribunal (EAT) ruled that employers are required to take a proactive approach to compliance with this entitlement (Grange v Abellio London Limited).
Prior to July 2012, Mr Grange's working day was fixed at eight and a half hours on the basis that he would enjoy a half-hour unpaid lunch break. However, the nature of his work made it difficult in practice for him to take such breaks. On 16 July 2012, he received an email from his employer, Abellio London Limited, expressing its expectation (at best) or instruction (at worst) that in future he was to work an eight-hour shift, without the half-hour break, but then to leave work half an hour earlier than he had done previously. In July 2014, he raised a grievance on the ground that he had been forced to work without a break and this had contributed to a decline in his health, but this was rejected.
Mr Grange subsequently complained to an Employment Tribunal (ET) that Abellio had denied him his entitlement to a 20-minute uninterrupted rest break, as provided by Regulation 12(1) of the WTR.
In dismissing his claim, however, the ET followed the approach taken by the EAT in Miles v Linkage Community Trust Limited and found that Abellio had not actually refused a request by Mr Grange to allow him to exercise his right to a rest break. The first time that he had complained about not being afforded breaks was when he lodged the formal grievance that his health had been affected by being forced to work non-stop for eight hours and there was no evidence that his employer had, in fact, refused his request.
In upholding Mr Grange's challenge to that decision, the EAT noted that there was conflicting legal authority as to whether there had to be an active refusal by an employer to allow breaks in order to give rise to liability under the WTR.
As the WTR were introduced in order to implement the EU Working Time Directive (WTD), it was appropriate to consider the language and purpose of the WTD, whereby rest periods are considered to be essential for the protection of workers' health and safety. Adopting that approach, it was clear that the construction of the WTR allowed by the EAT in Scottish Ambulance Service v Truslove was to be preferred to the approach taken in Miles.
The EAT therefore held that the WTR impose a duty on employers to actively respect workers' rights to rest breaks. They are required not merely to permit such breaks but to proactively ensure that working arrangements allow for workers to take them.
Appropriate Alternative Arrangements
There are exceptions to this general rule regarding rest breaks in order to take account of unusual or particular working arrangements where strict compliance would cause operational difficulties, for example in the case of workers who are ‘engaged in security and surveillance activities requiring a permanent presence’. Where the exception applies, the employer should nevertheless allow the worker to take an ‘equivalent period of compensatory rest’ wherever possible (Regulation 24(a)). In exceptional cases in which there are objective reasons for this not being possible, the employer must provide such protection as is appropriate in order to safeguard the worker’s health and safety (Regulation 24(b)).
In Hughes v The Corps of Commissionaires Management Limited, a security guard claimed that the arrangements made by his employer with regard to rest breaks during his shift did not comply with its obligations under the WTR.
Mr Hughes’ duties required him to be continuously available to supervise and monitor access to a site in Croydon owned by the telecommunications company Orange. He therefore remained on call during his rest breaks, leaving a note of his contact number on the reception desk. Sometimes, he was able to have an uninterrupted break, although he could never be sure in advance that this would be the case. If interrupted, however, he was permitted to start his break again.
The Court of Appeal held that whereas in normal cases a rest break must be outside working time altogether, in cases where an equivalent period of compensatory rest is offered, this need not be the case. It must, however, ‘have the characteristics of a rest in the sense of a break from work’ and the employer must, as far as is possible, ensure that the period that is free from work is of at least 20 minutes. The Court was satisfied that the nature of Mr Hughes’ job meant that he fell within the exceptions for the purposes of the WTR and the breaks provided to him did equate to an ‘equivalent period of compensatory rest’ under Regulation 24(a). Indeed, since he was permitted to restart any break which had been interrupted, he would sometimes enjoy a longer break than the 20 minutes normally required by the WTR.
In case it was wrong in its judgment that the arrangements in this case fell under Regulation 24(a), the Court went on to consider them under Regulation 24(b). This does not set two hurdles – exceptional circumstances and objective reasons why an equivalent period of compensatory rest cannot be provided. The presence of the latter establishes the former. Cases where the employer can provide neither a normal rest break nor a compensatory rest break will perforce be exceptional. Furthermore, the Court rejected Mr Hughes’ argument that his employer could not satisfy the Regulation unless it had carried out an assessment of the risks arising when there is a possibility of a rest break being interrupted. There is nothing in the legislation that requires this.
The Court of Appeal therefore held that there was no contravention of the WTR in this case.
A more recent case on appropriate alternative arrangements (Crawford v Network Rail Infrastructure Limited) concerned a relief railway signalman, Mr Crawford, who worked eight-hour shifts at various signal boxes, all but one of which were single manned. Train traffic was sporadic and, although he normally worked alone, he was able to take short breaks that together amounted to well over 20 minutes during each shift. He was not, however, guaranteed continuous 20-minute breaks and his employer required him to remain on call at all times and to take breaks as they naturally occurred in the course of his working day.
Mr Crawford claimed that his employer, Network Rail Infrastructure Limited, was in breach of the WTR for failing to provide either a 20-minute rest break or compensatory rest. Network Rail argued that the system in place was actually more beneficial from a health and safety point of view than one involving a continuous 20-minute break.
It was accepted that Regulation 12 of the WTR did not apply to him. An Employment Tribunal (ET) found that Network Rail had met its obligations as it 'permitted (indeed encouraged) him to take compensatory rest breaks'. However, the ET's decision was overturned by the Employment Appeal Tribunal, which was of the view that the length of the break is crucial and it is not open to employers to decide otherwise. The ET had observed that it would be possible to afford the signalman such continuous breaks by laying on appropriate personnel to relieve him and, in those circumstances, Network Rail had breached its obligations under Regulation 24.
In upholding Network Rail's appeal, the Court of Appeal noted that the word 'equivalent' in Regulation 24 cannot have been intended to impose on railway employers an identical obligation to that which would have applied under Regulation 12. Instead the intention must have been that the rest periods afforded to railway workers should have the same value in terms of contributing to their general wellbeing.
There was no basis for the proposition that only an uninterrupted 20-minute break can provide a benefit to railway workers equivalent to that enjoyed by other workers. There was no reason to suppose that such a continuous break would always be better, say, than two uninterrupted breaks of 15 minutes. The ET had reached the commonsense conclusion that the rest breaks afforded to the signalman passed the equivalence test. In those circumstances, his rights were not breached and his claim was dismissed.
This decision will come as a relief to employers of workers whose entitlement to rest breaks falls outside the general rule, as it will give them greater flexibility when organising rotas and means there is no obligation to employ cover to relieve lone workers so that they can take a full 20-minute break.
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