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Can an employer 'refuse' to provide a rest break if the employee has never asked for one?

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Rest Breaks under the Working Time Regulations 1998

In Grange v Abellio London Ltd, the EAT held that an employee could bring a claim for failure to provide rest breaks under the Working Time Regulations 1998, even when he did not expressly request any breaks. There was a duty on employers to take active steps to ensure that working arrangements enable workers to take the required rest breaks. Workers cannot be forced to take rest breaks, but employers must make sure that they have the opportunity to do so.

Mr Grange worked as a Relief Roadside Controller (RRC) which involved regulating and monitoring bus services. His working day lasted eight and a half hours, and was meant to include a 30-minute lunch break. However, in practice, it was often very difficult for Mr Grange to fit the break into his busy and unpredictable work schedule. Because of this, his employer reduced the working day of all RRCs to eight hours, so they would work through without a break and finish 30 minutes earlier. Mr Grange raised a grievance, and later submitted a claim, stating that he had not been permitted to exercise his right to a rest break of 20 minutes where the working day exceeds six hours.

Initially, this claim was rejected by the employment tribunal on the basis that, as Mr Grange had never formally requested the break (either before or after the change in his working hours), his employer could not have ‘refused’ to let him take it. The EAT disagreed with this view. The right to take rest breaks during the working day was extremely important for health and safety reasons. The employer had effectively ‘refused’ the employee this right by operating working arrangements that failed to facilitate the taking of breaks.

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