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The Employment Appeal Tribunal has considered a case where an employee claimed he was not being allowed to take a break and that this was having a poor effect on his health.  The EAT allowed his appeal and sent the case back to the lower tier to be re-heard.

The Working Time Regulations 1998 provide an entitlement to various rest breaks – Regulations 12(1) and 30(1) for those of you who like a reference.  This includes a 20-minute rest break after 6 hours of work.  Before July 2012, the Claimant had an eight and a half hour working day, paid for eight hours, with the intention that he take a half hour unpaid lunch break – although the nature of his work meant that this could be difficult to fit into the working day. On 16 July 2012, the Respondent emailed the Claimant expressing its instruction that he was to work straight through for eight hours, without the half hour break, but then to leave earlier than he would have done before.

In July 2014, the Claimant lodged a grievance complaining that he had been forced to work without a break, which had contributed to a decline in his health.

In hearing his claim, the Employment Tribunal followed a line of reasoning that says there has to be an actual refusal of a request in order for the Respondent to be liable under the WTR.  It was noted that before July 2012 the Claimant’s work arrangements had allowed for a half hour break, consistent with his entitlement under Regulation 12(1). Even if it was often difficult to take that break, that did not mean the Respondent had “refused” to permit the Claimant to exercise his right.

Until his grievance, however, the Claimant had not actually made a request for a break. Although his grievance had included such a request, there was no evidence – at least by the time of the ET claim – that the Respondent had in fact refused it.  The claim was therefore dismissed. The Claimant appealed.

The EAT allowed his appeal, noting that there were conflicting decisions of the EAT on the approach to be taken to rights to rest under the WTR.

Because of these conflicting decisions, the EAT looked behind the WTR to see what it was based upon.  As the WTR had been introduced to implement the Working Time Directive (“the WTD”), it was appropriate to consider the language and purpose of the WTD.  Adopting that approach, it was clear that the construction of the WTR allowed by the EAT in another case (Scottish Ambulance Service v Truslove UKEATS/0028/11) was to be preferred to that in the case considered by the ET (Miles v Linkage Community Trust Ltd [2008]). As the ET’s reasoning followed the approach laid down in Miles, the appeal would be allowed and the case remitted for determination of the issues in the light of this Judgment.

The key difference between these two cases is adequately dealt with if the employer enables the employee to take a break.  They do not have to force the employee to take a break – just make it possible for them to do so.  There should always be a clause in the contract of employment saying that the employee is entitled to take a break – and if you don’t have such a clause then give us a call!

 

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