We have a team that performs well, but because they are on commission, rarely take their official lunch break of 45 minutes, and usually take nothing at all. When one of the team told me that he was unhappy and wanted to be able to take a short break every day, I told him that it was the choice of the team how to arrange breaks.
Peter replies:
You don’t ask – you don’t get? Not quite when it comes to refreshment breaks. The failure to allow for rest breaks under the Working Time Regulations 1998 (“WTR”) is a ‘refusal’, even if no request has been made. Up until now, you may have been able to maintain that the responsibility has been on the employee, and it might also be characterised as ‘use it or lose it’.
This all changed last year with the case of Grange v Abellio London Ltd Employment Appeal Tribunal (EAT), which examined the scope of the right for workers to take a rest break. The case essentially asked: Is a worker required to ask for rest breaks, and be refused, before he or she can bring a working time claim in the employment tribunal?
The EAT made it clear that employers have an active duty to ensure that workers are able to take a 20-minute uninterrupted rest break for every six hours worked. It does not matter if the employee has appeared to acquiesce to an arrangement that prevents him or her taking a break. The entitlement to rest breaks under the EU Working Time Directive is intended to be actively respected by employers, for the protection of workers and health and safety.
An employee in this position can still bring a working time claim.
Many workers in high-pressured environments and many working mums do not take rest breaks, and will not complain that the right has been denied to them. Their perception may be that it is their choice, given their heavy workload, not to take a break. However, you will not be able to use that as a defence if the employee later complains and seeks to enforce their rights. Employers may have been lulled into a false sense of security by the earlier case law, and need to be aware of the risk of claims, if they arrange working hours in a way that explicitly, or implicitly, prevents employees from taking a short break during the working day. This will be challenging in sectors where employees are often required to work long shifts, and where it is often difficult for them to take a scheduled rest break, due to the need to provide continuity of care/service.
Whilst employers will be reassured that there is no obligation to ensure that workers are taking the required rest breaks where they choose not to do so, it does mean:
- You should review working arrangements to ensure measures are in place to enable workers to take such breaks should they wish to do so.
- You must take active steps to ensure that your working time arrangements enable workers to take requisite breaks. This does not mean that you should force them to take breaks, but workers must be encouraged to take breaks. The onus is, therefore, put on employers to proactively make such arrangements, rather than employees to ask for their break entitlement.
- Set out in your Handbook, and/or employment contract, their right to unpaid rest breaks.
- Train Managers to raise the issue with employees who appear to be working long hours without a break.
- You can foster a working culture that encourages breaks.
It can be a difficult balancing act to encourage employees to take rest breaks, without forcing them to do so, but you should do something with this employee, their boss and your Manager.
The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.
