All the lawyers are saying that Brexit won’t make any difference to English employment law (and in terms of black and white statute law that is probably true) but here is one of those very few cases which might genuinely have gone the other way if it had been brought after the UK leaves the EU. For better or worse, this is EU law in action.
Regulation 30 of the Working Time Regulations 1998 allows you to take a claim to the Employment Tribunal if you are “refused” the right to a rest break in line with those Regulations. But what does “refuse” mean?
In Grange –v- Abellio London Limited last week, the Employment Tribunal had concluded that in order for something to be refused, it first had to be requested. That meant that Mr Grange, who had not taken his rest breaks but equally had not requested them, lost his claim under Regulation 30.
The Employment Appeal Tribunal took a different view. It went back to the underlying intention of the EU Working Time Directive, which is that for health and safety reasons a worker is “entitled” to certain minimum rest breaks, in this case, the minimum 20 minutes in any 6 hours’ work. That was a right on the employee’s part. It did not impose any positive obligation on the employer to make sure that the employee took such a break whether he wanted or needed it or not. However, the EAT thought that the health and safety purposes of the WTD would be undermined if the employee had to ask before he could take a break (or rather, before he could complain about being refused it). Instead, it concluded that any working arrangement, whether an active instruction to work without a break, as in Grange, or merely such a pressure or flow of work that a break was not practicable would also in effect be a refusal under Regulation 30. After all, employees could otherwise be bullied or coerced into not asking for breaks, or simply crushed by sheer volume of work into not doing so, and then no entitlement would then arise. So applying the “purposive construction” required to interpret UK law in line with the EU Directive giving rise to it, meant that the EAT had to read “refuse” as including “make impracticable” or even “materially deter from” where the ordinary English usage of the word without that construction would just have meant “refuse”, as found by the ET.
Leaving aside politics and whether that outcome represents an unwarranted attack on British sovereignty or a quite sensible and logical decision in the best interests of those who might otherwise be disadvantaged, this decision does create a practical question: What is the point at which the arrangement of an employee’s work constitutes a deterrent to his taking the rest break to which he is entitled? If you pre-emptively tell the employee that he can’t have it, as here, then that is pretty clear. But what if the volume of work is such that the employee simply can’t get through it all if he takes that 20 minutes? Is the question assessed objectively – the average employee would be able both to do the work and take a break, or individually – but this particular employee can’t? What if requests for rest time are met with much sighing, tutting and rolling of eyes – not necessarily ultimately rejected but unwelcoming enough to put the employee off asking?
Bear in mind also, what constitutes the required 20 minutes’ rest. This is not a snatched few minutes here and there which aggregate to 20 over the working day, but a clear period which the employee knows in advance is his to do with as he wishes before he is next required to work.
Lessons for employers
No need to panic here, but no harm would be done by a quick and surreptitious review of rest breaks within your work force. Are your staff taking them? If not, why not? Is it a conscious and voluntary choice on their part, in which case no problem, or are they too busy or too scared even to ask? Whatever your views on Brexit, this will probably be our law for at least the next two years, so crossing your fingers and hoping that it will go away is not really an option.