Obligations of employers under the Working Time Regulations 1998 (WTR) not only include ensuring that the 48-hour limit on the average weekly working time is adhered to, or that workers' holiday pay calculations are correct – they must also check their workers receive specified periods of weekly and daily rest.
Under the WTR, workers are entitled to unpaid rest breaks of at least 20 minutes if they work for more than six hours a day. These must be for an uninterrupted period and can be spent away from their workstations. Exceptions exist for particular sectors such as transport, or where an individual's working time is unmeasured.
Complaints for breach of this right can be brought by workers in the employment tribunal. In successful claims, a tribunal may order an award of compensation as is “just and equitable in all the circumstances”. This takes into account both the employer's refusal to permit a worker taking a rest break and any loss suffered as a consequence. Previous cases had decided that such loss does not include any injury to feelings.
Grange v Abellio London Ltd
An employer's failure to allow a worker an adequate rest break has come under recent scrutiny. In Grange v Abellio London Ltd earlier this year, an Employment Appeal Tribunal (EAT) decided that because of such a breach, the employee was entitled to an award of personal injury damages as compensation from his employer.
Mr Grange initially had a 30-minute unpaid rest break during his eight-and-a-half hour working day. Abellio London Ltd, his employer, then reduced his working day to eight hours, so employees would work without a break and finish half an hour earlier. Mr Grange's grievance that he had not had meal breaks, and this had affected his health, was rejected. He then brought an employment tribunal claim that his employer had refused to permit him to exercise his entitlement to a rest break.
The tribunal dismissed his claim but the EAT agreed with Mr Grange that he had been refused breaks because his employer's working arrangements failed to allow workers to take rest. In assessing potential loss, the tribunal heard from Mr Grange that the lack of rest breaks had caused discomfort due to a bowel-related medical condition.
It considered that a just and equitable award of £750 was appropriate for the ‘discomfort and distress’ caused by Abellio's refusal to allow rest breaks. This was for 14 working days (an earlier period claimed for was out of time). In a low value claim such as this, the tribunal did not even require medical evidence but relied on the employee's account of his condition.
Tips for employers
To avoid exposure to claims of this type, organisations should:
- Check their employees' actual working hours to ensure they take a 20-minute break after six hours. This is often in the form of a lunch break and does not have to be paid. This can be taken away from a work station, although there is no requirement to provide separate facilities or accommodation for workers to take a rest break.
- Ensure that the duration and details of the break are documented in the employment contract or a collective agreement and these reflect what happens in practice.
- Not make it difficult for workers to take breaks, either due to peer pressure or the level of performance targets set.
- Consider keeping records. The WTR only require employers to keep ‘adequate records’ to show compliance with weekly working time and night-work limits. However, this approach was questioned in a European working time case in which it was decided, earlier this week, that more detailed records are required.
Kathryn Clapp is a senior professional support lawyer in the employment group at Taylor Wessing