Having just finished the round of Christmas and New Year lunches, and having undone all the good of two months’ worth of dieting, it seems appropriate to spare a thought for those whose working life doesn’t allow such luxuries.

Before I get any comments about typical lawyers and “who ate all the pies?” (I admit it, it was me), I feel I should point out that, like many, I often find it difficult to take a lunch break, other than eating a pot of cottage cheese at my desk (the diet again) whilst attempting to fill in an online ET3 before it logs me out, or dictating a particularly lengthy advice (for which I will inevitably receive complaints regarding the presence of cottage cheese on my keyboard or the difficulty experienced in understanding what I am saying whilst I have my mouth full).

For some people, however, there is often no chance to take a break, either through pressure of work, or simply because their employer has a rather relaxed attitude towards the requirements of the Working Time Regulations.

This issue recently came to the attention of the EAT in Grange v Abellio London.  Mr Grange originally worked for Abellio London, a bus operator, under an eight and a half hour working day contract which included a half hour unpaid lunch break.

Due to the nature of his work, Mr Grange found it difficult to take his lunch break, as did many others. In recognition of this issue Abellio decided, in July 2012, to reduce the working day to eight hours with an expectation that Mr Grange would work straight through his shift and, in effect, finish half an hour earlier each day.

Following a period of ill health, contributed to by his inability to take a rest break, Mr Grange lodged a grievance regarding the lack of a break and subsequently issued tribunal proceedings based on Abellio’s failure to provide a 20 minute uninterrupted rest break in accordance with the WTR – such a break being required where a working day is in excess of six hours.

Initially the Employment Tribunal dismissed Mr Grange’s claim on the basis of previous case law which suggested that there had to be an actual refusal of a request for a rest break before there was a breach of the WTR – Mr Grange never having specifically asked for a break, nor having been explicitly refused one.

However, on appeal, the EAT took the view that there was no requirement to expressly request a rest period, and that there was a duty on the employer to ensure that rest breaks could be taken (even if the employee decided not to take them). Any working arrangements which precluded the ability to take a rest break would amount to a “refusal” under the WTR.

This decision could have fairly wide-reaching consequences for a number of different businesses, particularly where there are a small number of staff, some of whom are expected to be available at every point during the working day, and those where there is an expectation that people will simply continue working through their rest periods in order to try and get their work done.

The employment team are often asked to advise on various issues arising from the WTR and, if you wish to discuss any issues you may have arising from the above, please contact Kevin Barnett or any other member of LA’s Employment and HR Team.