Rest breaks and compensatory rest – Grange v Abellio London Ltd.


The Grange case has ultimately helped to resolve an important issue relating to the approach to be taken to rights to rest under the Working Time Regulations (WTR). Before this, there were conflicting decisions from the tribunals and appeal tribunals as to whether an outright refusal by an employer was necessary before an employee could take advantage of their rights. The Employment Appeal Tribunal in the Grange case held that the WTR had to be construed consistently with the Working Time Directive and on that basis, a refusal by an employer (and thus a request by an employee) was unnecessary.


Rest breaks


Under the WTR, a worker is entitled to a daily rest break if their daily working time exceeds six hours.


A rest break is a period of at least 20 minutes which the worker is entitled to spend away from their “workstation”, if they have one.


However workers falling within a number of “special cases” under the WTR are excluded from entitlement to a rest break.


The test as to what is a “special case” is not necessarily whether the worker works within a particular industry; it is whether the worker’s activities involve the need for continuity of service or production. In such cases, the WTR goes on to provide that:

  • An employer shall wherever possible allow the worker to take an equivalent period of compensatory rest, and

  • In exceptional circumstances in which it is not possible, for objective reasons, to grant such a period of rest, an employer shall afford the worker such protection as may be appropriate in order to safeguard the worker’s health and safety.


Ultimately, when deciding whether workers in any case are covered by the special cases under the WTR, the focus needs to be on the activities of the worker rather than those of their employer.


Compensatory rest


The WTR allow employers, in limited circumstances, to require certain workers to work during periods that would otherwise be a rest period or a rest break. This might happen where:

  • The worker is a “special case” worker as advised above.

  • The worker is a shift worker changing shifts, such as from days to nights, which prevents the taking of a full daily or weekly rest period.

  • The work entails periods of work split up over the day, as may be the case with cleaning staff.

  • There is a collective or workforce agreement varying the entitlement to rest periods or breaks.


To clarify, where any such worker is required to work during a period which would otherwise have been a rest period or rest break, the employer shall:

  • wherever possible allow the worker to take an equivalent period of compensatory rest, and

  • In exceptional circumstances in which it is not possible, for objective reasons, to grant such a period of rest, an employer shall afford the worker such protection as may be appropriate in order to safeguard the worker’s health and safety.


Compensatory rest: key issues


A number of issues arise in relation to compensatory rest:

  • How much compensatory rest should be given, and does it have to be a continuous, uninterrupted period?

  • Does it need to be taken from working time?

  • Does it need to be given immediately?

  • Does compensatory rest have to be paid?


What is the correct amount of compensatory rest?


There is not necessarily a ‘one size fits all’ approach and it can depend on each different case/scenario but the prevailing view is that Compensatory rest is a period of rest the same length as the period of rest, or part of a period of rest, that a worker has missed.


The Regulations give all workers a right to 90 hours of rest in a week. This is the total entitlement to daily and weekly rest periods. The exceptions allow you to take rest in a different pattern from that set out in the WTR. The principle is that everyone gets his or her entitlement of 90 hours rest a week on average, although some rest may come slightly later than normal. So for example, if a worker “on call” is obliged to deal with a telephone enquiry for 10 minutes part way through their 11-hour rest period, then the amount of compensatory rest due to them is 10 minutes and not 11 hours.


However, what also has to be determined is whether an interruption is “significant” or “trivial”.


The view of the unions was that if a worker “on call” suffered a “significant” interruption to their rest period then they would be entitled to “full compensatory rest”, being an additional 11 or 24 hours’ consecutive rest, to be taken at another time.


In circumstances where the interruption was trivial, a lesser amount would be granted. Some employers have a threshold system in place to identify that a certain number of multiple small disturbances is deemed to be “significant” and therefore should trigger an entire block of 11 hours’ compensatory rest.


Does compensatory rest need to be taken during working time?

Put simply, no.


As far as daily and weekly rest periods are concerned, an employer can utilise “other time” (being any non-working time in excess of the statutory rest entitlements granted under the WTR) for use as compensatory rest, even though this would not in any event have been worked by the worker. Ultimately, the regulations are there to ensure that such workers do not work for excessive periods without a rest.


Does compensatory rest need to be given immediately?


I would advise that compensatory rest periods must, wherever possible, follow on immediately from the working time which they are supposed to counteract. Certainly in relation to young workers, compensatory rest for an interruption to daily rest periods should be given within three weeks of the interruption.


Ultimately, the effect on a worker’s health and well-being of losing a rest period can only be made up immediately after the time that it has been lost. If, for example, the worker has had to work a 24-hour shift and has lost their 11-hour rest, giving them an extra 11 hours’ rest in the following week will not adequately “compensate”.


To pay or not to pay?


The WTR do not provide that compensatory rest or, indeed, any non-working time other than annual leave, should be paid.


Way forward


If employers have not already done so, they should review all working practices and ensure that arrangements are put in place to allow workers to benefit from their statutory and contractual rights to rest. While workers cannot be forced to take rest breaks, they should be positively enabled to do so. Perhaps a memo to all staff just setting out as a reminder what rest breaks they are entitled to and perhaps even setting out the details above about compensatory rest.


Another option is to perhaps have a rest break handbook so all staff and managers are clear on their rights and ensure that breaks are not prevented.


Claims


Where an employee is prevented from taking a rest break, they can bring a claim for constructive dismissal on the basis that their employer has committed a fundamental breach of the employment contract. In addition, they could also bring a claim for breach of the WTR.


Constructive dismissal claim – if successful, a tribunal would give the following compensation:

  • payment of loss of earnings from the date of resignation until the date they either get a new job (if same/higher salary) or a tribunal hearing.

  • future loss of earnings – so if they do not get a new job, the tribunal will estimate how long they think it will take them to get a new job, so for example 6 months after the tribunal hearing, the employer would be liable to pay for 6 months’ worth of future loss of earnings


Breach of WTR claim – if successful


This is more speculative as a cost cannot be put on time. It would therefore be for a tribunal judge to determine and consider an amount that is just and equitable in all the circumstances, having regard to an employer’s default in refusing to permit an employee to exercise their right and any loss sustained by the employee as a result.


You also need to be mindful that because a rest break is a statutory right, it is an automatic right so an employee, regardless of how long they have worked for you can make a claim for automatic unfair dismissal if they can show that they have been dismissed because they asked for a rest break or of course, as set out above, automatic constructive dismissal if they resign because it has been refused.

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