Many regulations exist to safeguard the health of workers. Those relating to rest breaks are some of the less well-known, and yet overwork can have a whole range of negative effects on your health. Similarly, tiredness due to working night shifts can actually increase your chances of having an accident at work.
Sometimes all that is needed is to ‘switch off’ for a few minutes every day. But what can you do if your employer isn’t allowing you a rest break, or the nature of your work makes taking a break too difficult?
Is there a legal right against being overworked by your boss?
The right to a rest break
The basic answer is yes. The Working Time Regulations 1998 allow for the following rights:
- If you are over 18 and you work over 6 hours in a day, you are entitled to an uninterrupted rest break of 20 minutes.
- If you are under 18 and you work over 4 and a half hours in a day, you are entitled to a rest break of 30 minutes. This should be all allowed at once if possible.
In addition, you are entitled to spend the rest break time away from your workstation (if you have one).
Am I covered by these rights?
If you have a contract of employment then you will be protected under the Working Time Regulations. You don’t require such a contract, however. In general, if you are working for an employer in the same capacity as an employee (with or without a written contract) then broadly speaking the Working Time Regulations will apply.
An example case – Grange v Abellio London Ltd
So that is the basic legal position, but how might these regulations be applied in practice? Some cases have applied different interpretations of the regulations. These are well encapsulated by the case of Grange v Abellio London Ltd  UKEAT/0130/16/DA.
In the case, Mr Grange worked shifts of 8.5 hours a day. He was paid for 8 of those hours, with the remaining half hour being considered as his lunch break by his employer. Mr Grange’s job involved co-ordinating buses and adjusting services according to the demands of the situation; as such it was very difficult for him to fit the lunch break into his working day. In July 2012, Mr Grange’s employers sent an email to him stating he should work 8 hours straight and then leave work half an hour early. Mr Grange complied with this for two years until, in July 2014, he lodged a complaint that his lack of a lunch break was having a negative effect on his health.
The Employment Tribunal
Firstly, the Employment Tribunal considered his complaint. They came to the conclusion that Mr Grange’s employers had not breached the requirement for a rest break and his complaint was dismissed. They based this upon the fact that, as Mr Grange had not expressly asked for a rest break, his employers had not expressly refused one to him. The tribunal said that the difficulty Mr Grange faced in taking a break during his 8-hour shift did not constitute a refusal. These conclusions followed an interpretation of the Working Time Regulations which several previous cases had adopted.
Mr Grange’s appeal
Mr Grange appealed the decision and the matter was considered again, this time by the Employment Appeal Tribunal. They overruled the first tribunal’s reasoning. They stated that employers have a duty to make a rest break possible for their workers. It would contradict this duty if workers were required to put in an express request for a break before their rights could be upheld. Therefore, if an employer implements practices which make it impossible for a worker to take a rest break, the employer will have failed in their duty.
What does this mean?
Based on the Employment Appeal Tribunal’s decision, you no longer have to submit an express request to your employer to assert your rights to a rest break.
The Employment Appeal Tribunal also stated: “workers cannot be forced to take the rest breaks but they are to be positively enabled to do so”. It is your entitlement to have a rest break; you do not have to take one but, provided you meet the requirements of the Working Time Regulations, your employer cannot prevent you from doing so if you wish. This remains true whether your employer directly refuses to allow you a break or puts in place working practices which make taking a break impossible.
Exceptions to the right to a rest break
However, there are always exceptions in law, (naturally there are exceptions to this statement as well!).
First and foremost, it is important to be aware that your right to a rest break can be changed or excluded by the terms of a workforce agreement or a collective agreement. Workforce agreements are written agreements between an employer and their workers. A collective agreement is one made between an employer and a trade union. If any such agreements are in force in your workplace, it is crucial that you check their contents to see if they alter the Working Time Regulations concerning rest breaks.
In addition, the Working Time Regulations themselves specify exceptions where standard rights to a rest break do not apply. Most of these cover common sense situations where the right would undermine the work being carried out. For example, the regulations can exclude workers who are:
- in the Armed forces, police forces, or security forces
- doctors in training
- involved in security or surveillance activity
- involved in work needing a continuous service or production
- involved in transportation by road, air, rail, or water
- in situations where time is not measured or is determined by the worker themselves
- in situations where there are foreseeable surges of activity
- in exceptional or unusual events which couldn’t be reasonably anticipated
If your work falls into an excepted category, in most cases, your employer must provide an equivalent period of rest. In the even rarer cases where this is impossible, your employer must do all appropriate to safeguard your health and safety.
What can I do to enforce my right to a rest break?
You can raise the matter with an Employment Tribunal, although it might be wise to raise a grievance beforehand. If they find that your rights have been comprised, they may order an appropriate award of compensation. For more information, listen to our podcast on the Employment Tribunal process with Barrister Kevin McNerney.
If you have been forced to leave your job, whether due to overwork or because you were unable to take rest breaks, you may be able to make a constructive dismissal claim against your former employer.
Before taking any such steps, however, I strongly recommend consulting a specialist legal practitioner for advice.
Successful Working Time Regs case
We won a Working Time Regulations claim against a large employer using a No Win, No Fee agreement.
The facts were, broadly, that our client started working in a kitchen at a new pub. He hadn’t been given a contract. The kitchen was very poorly run, being a chaotic place to work. Over a number of days our client asked his manager for a break. The manager refused, even though our client was working long hours and was still a teenager.
Exhausted, our client went outside for a five-minute break. When he returned, almost unbelievably his manager punched him in front of all his colleagues. Understandably, our client resigned.
Although our client had been employed for only three weeks, we obtained a finding an Employment Tribunal that he had been automatically unfairly dismissed because he had been trying to have a break. Our client was awarded compensation for the lost wages between when he was assaulted at work and when he commenced his new job.
How Truth Legal can help?
My name is Navya Shekhar and Head of Employment Law at Truth Legal. I have experience of over 10 years in dealing with employment law issues. Our firm has the expertise to fully advise you on any legal matters you may have.
We are more than willing to sit down with you for a free, no-obligation consultation and to discuss any ways in which we can help you. We are often able to conduct claims on a ‘No Win No Fee’ basis.
Our head office is in Harrogate but Truth Legal also has virtual offices in Manchester and London. If you would like to discuss any of the issues raised in this article, please feel free to contact us or get in touch with me directly at [email protected].