Rest breaks

The regulations entitle workers to an uninterrupted rest break of at least 20 minutes if the working day is more than six hours. There is no statutory right to a second 20-minute break after twelve hours (The Corps of Commissionaires Management v Hughes UKEAT/0196/08/CEA).

This rest break need not be paid. The regulations state that breaks can be deferred and compensated later where “the worker’s activities involve the need for continuity of service”. However, employers cannot under-staff to avoid giving workers breaks.

Under regulation 8 of the WTR 98, where work is monotonous or the work-rate is predetermined, the employer must ensure workers receive adequate rest breaks. This right is separate from, and in addition to, the statutory right to a 20-minute rest break.

Workers are also entitled to a daily rest period of at least 11 consecutive hours and a weekly rest of not less than 24 hours, which can be averaged over two weeks. Young workers have additional protection (see Chapter 2: Young workers).

Employers owe an implied contractual duty not to require employees to work such long hours that could result in damage to their health (Johnstone v Bloomsbury Health Authority [1991] IRLR 118).

In Carter v Prestige Nursing Limited UKEAT/0014/12/ZT, the EAT reached the surprising conclusion that there can be no breach of the statutory duty to provide daily or weekly rest or rest breaks under the Working Time Regulations unless the worker has attempted to exercise those rights, for example by lodging a grievance about the employer’s failure to allow rest breaks and the employer has refused to allow the rights to be exercised. The case followed an earlier decision — Miles v Linkage Community Trust [2008] IRLR 602. In Miles, a new shift pattern imposed by the employer meant that the claimant could no longer take his statutory rest break. In his tribunal claim, he was only allowed to pursue compensation for breaks denied him after lodging his grievance complaining about the practice, and not for the earlier period after the shift change was imposed.

In the Carter case, the claimant, a live-in carer, lost her claim for failure to provide rest breaks because she could not show that she had actively asked to take breaks and been turned down. This conclusion rests on wording in regulation 30 which provides a remedy where the employer has “refused to permit” the worker to exercise the right. This unfortunate interpretation defeats the aim of the Working Time Directive, which is to ensure employers provide adequate rest for their workers.

It is automatically unfair to dismiss an employee for asserting a statutory right such as the right to a rest break under the Working Time Regulations (see Chapter 10: Automatically unfair dismissal), but only if employees are dismissed for asserting the statutory right. In Ajayi and another v Aitch Care Homes (London) Ltd UKEAT/0464/11, two care workers who were dismissed for falling asleep during their shift failed in their claim that they had been automatically dismissed for asserting their right to a break, although the care home was criticised for failing to provide rest breaks.

In Hone v Six Continents Retail Ltd [2006] IRLR 49, the Court of Appeal said that the fact that a worker regularly worked over 48 hours a week was relevant evidence in a claim for personal (psychiatric) injury caused by work-related stress. The personal injury suffered was reasonably foreseeable and the claim for compensation succeeded.

Under the Sunday Trading Act 1994, shopworkers who were in employment prior to 24 August 1994 and were not Sunday workers, or who have given their employers a written opt-out notice saying they do not wish to work on Sundays, are “protected shopworkers” and do not have to work on Sundays. For more information on religious observance and working hours see Chapter 6: Discrimination.

More information on the treatment of working time for different workforce groups can be found in LRD’s annual publication Health and safety law and Working Time Regulations - Application and enforcement.

www.lrdpublications.org.uk/publications.php?pub=BK&iss=1682

www.lrdpublications.org.uk/publications.php?pub=BK&iss=1659