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). 





A period of “downtime” when a worker is allowed to stop working but must 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). 





A statutory rest break need not be paid. However, there may be a contractual right to pay, especially in a workplace where a union is recognised.





Rest breaks can be replaced (for adults only) by 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. When assessing the need for continuity of service, it is the activities of the worker, not those of the employer that must involve that need (Gallagher v Alpha Catering Services Limited [2005] IRLR 102).


There is also an exception for unusual and unforeseeable circumstances, for example, due to an accident (regulation 21(e), WTR).




Any 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 can be made up of several shorter chunks of time which, when added together, amount to 20 minutes, as long as the rest provides the same benefit in terms of wellbeing (Network Rail Infrastructure v Crawford [2019] EWCA Civ. 269). 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 extra right to adequate rest breaks on top of their 20-minute break (regulation 8, WTR 98). 


There are also separate obligations to provide rest breaks for keyboard users (regulation 4, Health and Safety (Display Screen Equipment) Regulations 1992). There is more information about these 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 for failure to provide breaks (Grange v Abellio London Limited [2016] UKEAT/0130/16/1611).Any compensation is limited to the wages for the working time that should have been spent on the break. There is no entitlement to compensation for injury to feelings (Viviana Santos Gomes v Higher Level Care Limited [2018] EWCA Civ 418), although personal injury compensation may be available if failure to provide breaks leads to ill-health (regulation 30(4)(b), WTR, Grange v Abellio London Limited [2018] UKEAT 0304/17/0810). 


It is automatically unfair to dismiss an employee (or to submit a worker to a detriment) for asserting their right to a rest break, but the dismissal must be for asserting the right. In Ajayi v Aitch Care Homes (London) Ltd [2012] UKEAT/0464/11, two careworkers dismissed for falling asleep during their shift were not asserting their right to have a rest break by falling asleep, so their claim failed (even though the care home was in breach of its statutory obligation to provide rest breaks). 


A failure to provide extra breaks for a disabled worker could amount to disability discrimination, including failure to make reasonable adjustments (see page 243, Chapter 7).




A refusal of extra breaks requested by a pregnant worker to help her manage her pregnancy is likely to amount to pregnancy discrimination (see page 225, Chapter 7). A refusal of breaks needed for breastfeeding may be sex discrimination (Otero-Ramos v Servicio Galego de Saúde ECJ Case C‑531/15 EU:C:2017:789) (see Breastfeeding: page 111).