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How employers can say no, without saying a word

06 Dec 2016

As the countdown to the festive season gets underway, employers juggling the pre-Christmas workload need to ensure workers are enabled to take their rest breaks.

The warning comes after an employer was found to have failed to take the necessary steps to facilitate rest breaks – despite the employee not having made any specific request.

The case was brought by an employee whose job involved regulating bus services to match road traffic conditions. The employee had a working day of 8.5 hours, including a half-hour lunch break. When it proved difficult for him to take a break, because of the nature of the job, his employer changed his working day to 8 hours. The idea was that he would work without a break, but finish half an hour earlier.

All workers are entitled to a 20-minute rest break after six hours of working under the Working Time Regulations, and if the entitlement is breached then an employee can make a claim if the employer ‘has refused to permit him’ to exercise the right. The key question was whether an employee could make such a claim when he had not actively requested the break, and so had not received a direct refusal from the employer.

The Employment Appeal Tribunal held that workers should be positively enabled to take breaks by the employer. In making the decision, it highlighted minimum rest periods are essential for the protection of health and safety and said there should be no distinction between entitlements and obligations.

Sarah Furness, Partner & Employment law specialist at Hay & Kilner commented:

“The important thing to take away from this is that employers should not wait for rest breaks to be requested, instead they must be proactive in making sure that working arrangements enable workers to take those breaks. Otherwise, where the arrangement of the working day makes it difficult or prevents workers from taking a break, this may be taken as a denial of a right.”

For further information, please contact Sarah Furness, Partner in our Employment team

Call: 0191 232 8345

Email: Sarah.Furness@hay-kilner.co.uk