Have a break… - do employers need to be proactive when dealing with rest breaks?

The Working Time Regulations 1998 (WTR) state that workers have the right to take certain rest breaks as follows:

• a daily rest period of 11 hours' uninterrupted rest per day;
• a weekly rest period of 24 hours' uninterrupted rest per week (or, at the employer's choice, 48 hours per fortnight);
• an uninterrupted 20 minute rest break where the working day is longer than six hours; and
• 'adequate' rest breaks for workers carrying out monotonous work, such as on a production line, where this can put the worker's health and safety at risk.

In relation to the 20 minute rest break, in most cases workers will take a 'meal break' and so this duty to provide a rest break is satisfied. However, working environments, flexibility in working hours and working pressures mean that workers are not always afforded or do not choose to take their rest break.

Grange v Albellio London

The notion of rest breaks was recently considered in the case of Grange v Abellio London. The Claimant in this case had a working day of 8.5 hours, which comprised half an hour of an unpaid rest break. The nature of his role meant that it was often difficult for him to take that break. The Claimant's employer changed the length of his working day to eight hours so that he would work without a break and finish half an hour earlier. Following the implementation of this change in hours, the Claimant subsequently submitted a grievance that he had been forced to work for 8 hours without a break, and that this had impacted on his health.

His grievance was heard but rejected and the Claimant lodged a claim in the Employment Tribunal (ET) which also rejected his claim, on the basis that no actual request for a rest break had been made and therefore was not refused. The Claimant appealed and the Employment Appeal Tribunal disagreed with the ET's finding. The Employment Appeal Tribunal held that employers need to proactively ensure that working arrangements allowed for workers to take rest breaks. The case emphasises that a worker does not need to request a rest break to which he is entitled by statute and that the obligation is on the employer to actively ensure that its workers and employees take adequate rest breaks.

Impact

The nature of work, time pressures and flexible working requests mean that many workers may not wish to take a rest break. However, it is the employer's duty to ensure that suitable working arrangements are in place to allow workers to take rest breaks, regardless of whether or not the worker wishes to have a break. This is seen as a key health and safety measure to help protect employees and workers. In practice, employers should therefore ensure that working arrangements are implemented so that workers can benefit from the rights and entitlements enshrined in law. Workers are entitled to refuse to take rest breaks, but employers should enable them and provide them with the opportunity to take breaks.

The outcome of this case is particularly interesting in the context of the recent Uber ruling in which it was determined that Uber drivers are classified as 'workers' and not 'self-employed' and therefore entitled to take rest breaks as well as a host of other employment rights. It is envisaged that the Uber case will have an impact on the functioning of the 'gig economy' – i.e. where individuals sell their skills and services on an ad hoc basis, affecting the service industry including couriers, fast food delivery companies and portable cleaning operators of which there are increasing numbers given our heightened use of technology. Such individuals will therefore also be entitled to rest breaks in line with the WTR which will mark a decided shift from the current paradigm.