Abellio employed Mr Grange from September 2009, initially as a bus driver working 8 hours a day plus a ½ hour unpaid lunch break.
Mr Grange was subsequently promoted to a Relief Roadside Controller. He continued to work 8 hours a day, but the company expressed its expectation that he was to work straight through for 8 hours, without the ½ hour break, but to leave earlier than he would have done before.
In July 2014, Mr Grange lodged a grievance complaining he had been forced to work without a break, which had impacted upon his health. The grievance was heard in September 2014, but ultimately rejected in January 2015.
Meanwhile, in November 2014, Mr Grange brought a tribunal claim stating that Abellio acted unlawfully in refusing him rest breaks under the Working Time Regulations.
The Employment Tribunal followed the approach laid down by a decision by the Employment Appeal Tribunal in Miles v Linkage Community Trust in 2008. The tribunal concluded that Mr Grange’s work arrangements had allowed for a ½ hour break, consistent with his entitlement under the Working Time Regulations. Even though the ½ hour break was difficult to take that did not mean Abellio had refused to permit Mr Grange to exercise his right to a 20 minute break.
Furthermore, the tribunal held that Abellio’s email dated 16th July 2012 had (at best) stated its expectation or (at worst) instructed Mr Grange that he should work through for 8 hours without a break. Until his grievance in July 2014, Mr Grange had not actually made a request for a break. Although his grievance included such a request, there was no evidence, at least by the time of the claim, that Abellio had refused the request.
Mr Grange appealed to the Employment Appeal Tribunal which allowed the appeal. It accepted the reasoning in another case, Scottish Ambulance Service v Truslove in 2011 rather than the case of Miles from 2008.
Furthermore, the Appeal Tribunal accepted Mr Grange’s argument that the instruction by Abellio to work without a rest break could be construed as a refusal, without an explicit request.
The case was remitted back to the Employment Tribunal to determine the issues in light of its Judgment.
Under the Working Time Regulations, workers have the right to one uninterrupted 20 minute rest break during their working day if they work more than 6 hours a day. This is not a snatched few minutes here and there which aggregate to 20 minutes over the working day, but a clear period which the employee knows in advance is theirs to do with as they wish.
There is no need for businesses to panic about this case, but no harm would be done by a quick review of rest breaks within the workforce.
Are your members of staff taking a minimum of 20 minutes rest if they work more than 6 hours? If not, why not? At the end of the day it is a voluntary choice on the workers part, in which case no problem. However, are they too busy or too scared to ask for a break?
If your business would like to have your contracts and policies reviewed to ensure they are complaint with the Working Time Regulations, or if you have any queries with the above, please do not hesitate to contact Sally Morris at firstname.lastname@example.org or on 01905 734032.