Rest breaks 



The WTRs entitle workers to an uninterrupted rest break away from their work station of at least 20 minutes if the working day is more than six hours (Regulation 12, WTR). It must be taken during working time. It cannot be taken after the shift has ended. Any modification to this basic right can only be agreed by a collective or workforce agreement. Individual workers cannot waive their right to a break. Certain categories of adult worker are excluded, but they must be provided with “compensatory rest” (see below).


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). 



There is no right to compensation for injury to feelings if an employer fails to provide a rest break (Gomez v Higher Level Care Limited [2016] UKEAT/0017/16/RN). In some circumstances, it may be possible to claim compensation for personal injury, for example if the employer repeatedly refuses rest breaks leading to exhaustion and ill-health (see regulation 30(4)(b), WTR).


A period of “downtime” when a 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 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 (for adults only) with an equivalent period of compensatory rest in cases where “the worker’s activities involve the need for continuity of service” (regulation 21, WTR). Regulation 21 includes examples lifted from the Directive, such as work in security, surveillance, hospitals, press, docks, airports and utilities. Employers must not under-staff to avoid giving workers breaks. There is also an exception for unusual and unforeseeable circumstances, for example due to an accident.


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 an additional right to adequate rest breaks, on top of their 20-minute break (regulation 8, WTR 98). There are separate obligations to provide rest breaks for keyboard users (regulation 4, Health and Safety (Display Screen Equipment) Regulations 1992). There is more information on the HSE website.



There is no need to ask for permission to take a rest break in order to bring a tribunal claim under regulation 30, WTR where an employer fails to provide breaks (Grange v Abellio London Limited [2016] UKEAT/0130/16/1611). This reverses controversial earlier EAT rulings such as Miles v Linkage Community Trust [2008] IRLR 602
and Carter v Prestige Nursing Limited [2014] UKEAT/0014/12/ZT reported in earlier editions of Law at Work.


It is automatically unfair to dismiss an employee for asserting a statutory right such as the 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:



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).



Working regularly for over 48 hours a week can be relevant evidence in a claim for psychiatric injury based on workplace stress (Hone v Six Continents Retail Limited [2006] IRLR 49).



An employer’s failure to follow the Health and Safety Executive Management Standards for Workplace Stress, especially after being reminded by the union, can also be significant. There is information about the Standards on the website of the Health and Safety Executive and in LRD’s annual guide for reps, Health and Safety Law. 



In the following case, a requirement for a driver to work without a reasonable break was a breach of contract:


A failure to provide extra breaks when requested by a disabled worker could be a breach of the duty to make reasonable adjustments (see page 253, Chapter 7).


A refusal of extra breaks requested by a pregnant worker could amount to pregnancy discrimination and/or gender-based harassment (see page 225, Chapter 7).