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Rest breaks
[ch 4: pages 113-115]The WTRs entitle workers to an uninterrupted rest break away from the work station of at least 20 minutes if the working day is more than six hours. It must be taken during working time. It cannot be taken after the shift has ended.
There is no statutory right to a second 20-minute break after 12 hours (The Corps of Commissionaires Management v Hughes UKEAT/0196/08/CEA).
A period of “downtime” when the worker is allowed to stop working but required to remain in contact with the employer is not a rest break, even if it turns out at the end of the break that it was uninterrupted (Gallagher v Alpha Catering Services Limited [2005] IRLR 102 C.A.).
A statutory rest break under the WTRs need not be paid, although there may be a separate contractual right to a paid rest break, especially in a workplace where a union is recognised.
Rest breaks can be replaced with an equivalent period of compensatory rest where “the worker’s activities involve the need for continuity of service”. However, employers must not under-staff to avoid giving workers breaks. Any period of compensatory rest must be a genuine break from work and must, as far as possible, be free from work for at least 20 minutes (Hughes v The Corps of Commissionaires Management Limited [2011] EWCA Civ. 1061). Compensatory rest should be taken as soon as possible after the work period.
Where work is monotonous or the work-rate is predetermined, workers have a separate right to adequate rest breaks (regulation 8, WTR 98) on top of the 20-minute 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. An employer can modify this in special cases or if there is a collective agreement by providing "an equivalent period of compensatory rest". Young workers have extra protection (see Chapter 2: Young workers).
Under regulation 30, WTR, a remedy is only available where the employer has “refused to permit” the worker to exercise their right to a rest break, meaning that surprisingly, the duty to provide daily or weekly rest or rest breaks is not breached unless a worker has tried to exercise those rights, for example, by lodging a grievance, or having a request to take a break refused:
A new shift pattern prevented Mr Miles taking his statutory rest. He won compensation, but only for the breaks denied after he lodged his grievance complaining about the practice, not the ones he missed after the shift change was imposed, but before he complained about it.
Miles v Linkage Community Trust [2008] IRLR 602
www.bailii.org/uk/cases/UKEAT/2008/0618_07_1003.html
Ms Carter, a live-in carer, lost her claim for failure to provide rest breaks because she could not prove she had asked to take the breaks and had her request rejected.
Carter v Prestige Nursing Limited [2014] UKEAT/0014/12/ZT
It is automatically unfair to dismiss an employee for asserting a statutory right such as the statutory right to a rest break (see Chapter 10: Automatically unfair dismissal), but only if the employees are dismissed for asserting the statutory right, and not for some other reason:
Two care workers were dismissed for falling asleep during their shift. They argued that they had been automatically dismissed for asserting their right to a break. Their claim failed. Falling asleep was not the same as asserting the right to take a rest break, even though this employer was breaching its duty to provide rest breaks under the WTRs.
Ajayi v Aitch Care Homes (London) Ltd [2012] UKEAT/0464/11
Employers also owe duties under contract and tort not to require employees to work such long hours that they could damage their health (Johnstone v Bloomsbury Health Authority [1991] IRLR 118).
An employer’s failure to follow the Health and Safety Executive Management Standards for Workplace Stress can also be significant. There is more information about these Standards on the website of the Health and Safety Executive and in LRD’s annual health and safety law guide Health and Safety Law.
Working regularly for over 48 hours a week can be relevant evidence in claim for psychiatric injury based on workplace stress:
Mr Hone regularly worked over 90 hours a week, complained of tiredness and his requests for help were ignored. The court said these factors should have alerted the employer to Hone’s stress and it should have taken steps to deal with the problem.
Hone v Six Continents Retail Limited [2006] IRLR 49
In the following case, a requirement for a driver to work without a reasonable break was a breach of contract:
Immediately on his return from a nine-day overseas driving job, Mr Owen was told to do another long-distance job. He refused, explaining that he had not had enough time off between trips, and was dismissed. The EAT agreed that there was an implied term entitling Owen to a reasonable break before he undertook more driving duties. The requirement to work another long shift with inadequate time off was an unreasonable order and a breach of contract.
NWT Freight Forwarding v Owen EAT/0643/01
Here is another recent example:
Construction firm Ogilvie Construction was ordered to pay compensation of £14,031 to site manager David Brown when he was forced to work excessively long hours. Brown, who had 28 years’service, raised concerns about his hours with bosses on several occasions, asking for help with his workload, but nothing was done, and over a five month period he worked at least 53 hours a week, and more than 70 hours in seven of those weeks. Time sheets were seen by his line manager.
Eventually Brown was demoted and his pay was cut, but his workload stayed the same. Brown resigned and claimed constructive dismissal. The tribunal ruled that the work burdens imposed on him required him to work “excessive hours week in week out” over an extended period despite his protests, and amounted to a fundamental breach of contract, aggravated by his demotion and pay cut without a reduction in workload. Brown’s contract terms required him to work extra hours to complete projects, but the judge implied a term that the extra hours must be “reasonable”. Commenting, the TUC said the case illustrates the need for a stronger Working Time Directive.
Brown v Ogilvie Construction, Employment Tribunal, unreported, January 2016 (source: Planning and Building Control Today, 18 January 2016)